My job share is an agency worker on a one-year contract. I have
had numerous concerns on her ability to perform the role and have raised the issues with my manager. She is pregnant, but hasn’t officially told us. I have heard that she intends to take two weeks off for the birth. I am still having lots of performance issues with her and have said that she might not be suitable for the role, but my manager is reluctant to say anything for fear that she may claim unfair dismissal on maternity grounds. Am I just going to be stuck? Surely I
have rights too?
It is reasonable for an employer to expect an individual to meet the standards required of them, and, if that is not happening, to identify the issues, then review and manage the situation with that individual. It does not matter if the individual is an agency worker or someone employed directly by the business. Ordinarily that performance management would consist of gathering information and observation of the individual’s work, discussing concerns with the individual and ensuring they have the support and training required to perform well.
If their performance is particularly poor and/or an informal discussion and review period has not resulted in a positive change, we would expect a reasonable employer to then follow a capability procedure so that the individual gets the support and training (if required) to improve and meet the business’ expectations. The goal of such a process ought to be to support the individual to meet the performance standards required and to retain them as part of the staff. If they do not meet the reasonable objectives set for them and have received sufficient support and training to do so, then dismissal is a possible outcome.
As long as the individual’s sex, maternity or pregnancy is not the reason for the performance issues and/or a resulting dismissal, this can be a fair dismissal. Your manager would need to take legal advice on the process, however.
I understand your concern, but it’s also reasonable for you to remind your manager that managing the situation is their responsibility, not yours, and they also have a duty to provide you with the support needed to perform your own tasks. I am sure you have been providing support and training (where possible) so as to assist your colleague and in turn, your work.
In this instance, I suggest that you ask your manager to have an informal review with the individual to discuss their progress, their work and whether additional support or training is required. You could identify any key concerns you have and support which might help that discussion. It is possible, though, that your colleague is suffering from pregnancy-related issues which is affecting her work and these will naturally pass in due course. If you feel you are being unsupported after this discussion or nothing changes, you could ask for a formal review meeting with your manager and potentially raise a grievance.
Finally, I suggest that you or the colleague who has been told about the pregnancy encourage this lady to tell your manager of her pregnancy. This is because the business is required to do a risk assessment for her personally once it knows she is pregnant, and may need to take steps to support her both now and after the baby arrives. It can also identify any entitlements, whether contractual or statutory, she might be eligible for.