Dismissal during pregnancy, maternity leave, adoption leave, shared parental leave or soon after
It can be legal to sack a pregnant woman, but the normal rules of dismissal apply, and the dismissal must not in any way be related to her pregnancy or intention to take maternity leave. A dismissal because of pregnancy, pregnancy related sickness, birth or maternity leave is an automatic unfair dismissal, however long you have been in employment. If you are dismissed while pregnant (or on maternity leave) you must be given written reasons for the dismissal.
Unlike women on maternity leave, pregnant women who have not yet started maternity leave have no special protection in a redundancy situation.
However, the redundancy selection criteria must not take into account reasons connected to pregnancy (including pregnancy-related illness) or maternity leave.
It is not unlawful to dismiss an employee while they are on maternity leave, adoption or shared parental leave, but if you are dismissed because of pregnancy, birth, adoption leave, maternity leave, paternity leave or shared parental leave you may have a claim for automatic unfair dismissal and pregnancy or maternity discrimination. You are entitled to written reasons for the dismissal and to be paid for any outstanding holiday pay that has accrued during your maternity leave up to the end of your notice period.
If you are dismissed during maternity leave you are still entitled to receive Statutory Maternity Pay or Maternity Allowance for the full period (provided you do not start working for another employer during that time, see here for more details), but if you get notice pay your employer may deduct maternity pay for the same period from the notice pay.
If you are dismissed after the beginning of the week in which your first period of Shared Parental Pay starts, you should receive Shared Parental Pay for the full period (provided you do not start working for another employer during that time), but if you get notice pay your employer may deduct Shared Parental Pay for the same period from the notice pay.
If you are dismissed during paternity leave after your child is born, you should still receive your paternity pay for the full period (provided you do not start working for another employer during that time), but if you get notice pay your employer may deduct paternity pay for the same period from the notice pay.
If you are dismissed after the beginning of the week which you were notified of being matched with a child for adoption, you should still receive your statutory adoption pay for the whole period (provided you do not start working for another employer during that time), but if you get notice pay your employer may deduct paternity pay for the same period from the notice pay.
The statutory minimum period of notice is one week’s notice for each year of continuous employment, up to a maximum of 12 weeks. Some employees are entitled to more than the statutory notice period because of the terms of their contract of employment, so do check your contract.
You are entitled to be paid notice pay in full during maternity leave. However, if you are entitled to a contractual notice that is more than the statutory minimum, the law is less clear, do seek advice if your employer refuses to pay contractual notice pay.
For example if you were dismissed two weeks before your Statutory Maternity Pay (SMP) runs out, and your employer has to give you four weeks notice because you have four years of service, what you would actually receive would be four weeks at full pay. This would be made up of two weeks where you continue to be paid SMP and this is topped up to your normal pay, and two weeks of normal pay. In other words, what would go into your bank would be the same amount as four weeks normal pay, but this amount would include the outstanding SMP owed. If your employer is paying in lieu of notice, they may not be entitled to offset your maternity pay. Seek advice if you are not sure.
A redundancy is a dismissal but special rules apply to women on maternity leave and parents on shared parental leave or adoption leave, see our article on redundancy and maternity leave.
If you are entitled to SMP, then your employer will continue to pay your full entitlement even if you resign during your maternity leave (as long as you don’t start work for another employer).
The rules for Shared Parental Pay (ShPP) are more complicated. To be eligible for ShPP you need to remain continuously employed for 26 weeks before the 15th week before your child is due, and remain in employment up to the week before you want your first week of Shared Parental Leave (SPL) to start. If you resign and you are working your notice, you remain continuously employed and can take your SPL during the notice period. You will be entitled to any ShPP you have already booked for that block of leave, even if your contract ends during your Shared Parental Leave (as long as you don’t start work for another employer). However, if your contract comes to an end before the week preceding the week before your SPL starts, you won’t be entitled to any ShPP. If you are taking Shared Parental Leave in discontinuous blocks, you need to be employed until (or your notice has to end after) the week before each block of SPL to be entitled to receive ShPP for that block.
Remember to check your employer’s policy if they offer any enhanced maternity or shared parental pay in these circumstances.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details