How do I prove I have been dismissed because I am pregnant?

It is an unfortunate fact that many mothers to be are subjected to discrimination once their employer finds out they are pregnant. A substantial number of women are dismissed every year because of their pregnancy. Those most at risk are employees with less than two years’ service as many employers believe that they can dismiss such employees without any risk of a subsequent Employment Tribunal claim.

However, employees with less than two years’ service can bring claims for automatic unfair dismissal and sex/maternity discrimination if their pregnancy was a significant, important or effective cause of their dismissal.

Unfortunately, however, many employees are reluctant to bring such a claim as they fear they will be unable to prove that their pregnancy was an effective cause of their dismissal. An employer is very unlikely to make any statement to the effect that an employee’s pregnancy was the reason for their dismissal and, in most cases, employers will put forward a reason for the dismissal which, on the face of it, has no relationship to an employee’s pregnancy. So what should an employee do if they believe that their pregnancy is a significant, important or effective cause of their dismissal?

Prepare a chronology and list relevant facts as soon as possible

The starting point is for an employee to document all relevant facts leading up to their dismissal. This will include documenting, in a chronology, any performance or conduct issues that may have been raised with them in the period leading up to their dismissal.

Crucially, they should document the date that their employer became aware that they were pregnant, the date they were informed they were being dismissed and the reasons provided by the employer for such a dismissal. If possible, an employee should also document the circumstances of other employees who may have been involved in similar work or circumstances to themselves.

If an employer claims that the reason that an employee has been dismissed is because of, for example, poor performance, and yet there is no evidence of any performance issues being raised with the employee previously, this would be a very important evidential fact that would point to pregnancy being a significant cause for the dismissal. An employee should also include examples of how other women have been treated when they notified their employer that they were pregnant or have taken maternity leave if applicable.

ACAS guidance on obtaining evidence

As there will rarely be a “smoking gun” linking an employee’s pregnancy to their dismissal, ACAS have provided guidance for asking and responding to questions of discrimination in the workplace. This procedure entitles any employee who believes they have been discriminated against because they are pregnant to ask targeted questions of their employer to help to seek to establish whether their pregnancy has influenced the decision to dismiss them.

An employee should set a reasonable period of time within which their employer should respond to the questions. If an employer fails to respond or their answers are evasive or inadequate, then an Employment Tribunal may consider this in making their overall decision on whether an employee has been discriminated against. A typical questionnaire to be forwarded to an employer in a pregnancy dismissal case would include the following information and questions, namely:-

• Confirmation of the employee’s expected week of confinement (together with a copy of a Form MATB1).
• Confirmation of when and to whom the employee notified the fact that they were pregnant.
• Confirmation of the date that the employee was dismissed.
• A statement to the effect that the employee believes that their pregnancy was a significant, important or effective cause of their dismissal and a brief explanation as to why the employee has arrived at this view.
• An invitation to the employer to confirm whether it agrees with the employee’s version of events above and, if not, why not.
• A request for confirmation of who made the decision to dismiss the employee, when dismissal was first considered and whether there is any documentary evidence to substantiate this and the reasons for dismissal.
• If the reason provided by the employer for dismissal is poor performance, the employee should ask for full details of other employees undertaking the same or similar work whom the employee suspects have been performing no better or indeed worse than the employee. This may include asking for comparative statistical information in respect of sales performance or performance as against target, complaints received, appraisal documentation etc.
• Disclosure should be sought of the employer’s Equal Opportunities Policy and Maternity Policy.
• A request should be made for confirmation of the number of employees who have been dismissed, made redundant or resigned who have been pregnant and/or taken maternity leave with less than two years’ service.
• Similar information should be sought in respect of employees who have more than two years’ service.
• If poor performance is alleged, full particulars should be requested of the alleged poor performance, together with any evidence that the employer has to substantiate such allegations.
• Comparative evidence should be requested for other employees’ performance (such as appraisals and performance statistics).
• A request should be made of any risk assessment relating to the employee’s employment.

Data Protection Subject Access Request

In addition to sending a questionnaire, an employee who considers they have been dismissed because they are pregnant should always consider making a Subject Access Request pursuant to the Data Protection Act. In particular, a request should be made of all documents relating to the employee in question, including all internal memoranda, emails and statistical information where the employee is referred to.

*This article is written by Alan Lewis. Alan is Principal Lawyer and Head of Employment at national law firm Linder Myers which has offices in Manchester, Shropshire, Chester and Lancashire. He is also one of the employment law experts on the Workingmums.co.uk’s expert panel. If you have a question for Alan, contact us via the box on our Advice and Support page.

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