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?
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.
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:-
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.