Pregnancy and SMP rights if my contract is not renewed

You have enquired as to whether you are entitled to SMP if your contract is not renewed.  An employee will be entitled to SMP if:

• She has been continuously employed for at least 26 weeks by the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC). The 26-week period must include at least one day’s employment in the Qualifying Week. Note, the legislation refers to the “end of the week immediately preceding the 14th week” before the EWC, which is the same thing as the end of the Qualifying Week..
• Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for NICs purposes (currently £120 per week for 2022-2022).
• She is still pregnant 11 weeks before the start of the EWC (or has already given birth).
• She gives the employer at least 28 days’ notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date she intends SMP to start.
• She supplies a certificate (usually a MAT B1) from a midwife or doctor, confirming the date of her EWC. This must be given to the employer either before the birth, no more than three weeks after the birth or, if she has good cause for delay, as soon as reasonably practicable.
• She has ceased work.  SMP is available to “a woman who is or has been an employee” (section 164(1), SSCBA). It therefore does not matter if she takes maternity leave, resigns, or is dismissed for any reason including redundancy, misconduct or even the fact that she has lost the right to work in the UK; provided she has qualified for SMP and has “ceased work”, she will be entitled to receive it.

On the basis of the above, if you are still employed at the Qualifying Week and even if your contract is not renewed after 27 June 2021, you will still be entitled to the full SMP entitlement from your former employer. It is more than likely that any contractual maternity pay and benefits will cease on termination, but SMP will continue.  I am unclear how your employer will go about paying the SMP, but I anticipate that HR should be in a position to advise you.

Dismissal of fixed-term employees

The Fixed-term Employees Regulations introduce the concept of parity of treatment between fixed-term employees and comparable permanent employees. Fixed-term employees are entitled not to be treated less favourably than comparable permanent employees by reason of their fixed-term status, unless the employer is able to objectively justify the different treatment.

Protection from dismissal and detriment

Under Regulation 6, the dismissal of a fixed-term employee is automatically unfair if the reason or principal reason for the dismissal is that they have done (or the employer believes or suspects that they have done or intend to do) any of the following:

• Brought proceedings against the employer under the Fixed-term Employees Regulations.
• Requested a written statement under regulation 5 or regulation 9.
• Given evidence or information in connection with proceedings brought by any employee under the Fixed-term Employees Regulations.
• Otherwise done anything under the Fixed-term Employees Regulations in relation to the employer or any other person.
• Alleged that the employer infringed the Fixed-term Employees Regulations (provided the allegation is not false and not made in bad faith).
• Refused (or proposed to refuse) to forgo a right conferred on her by the Fixed-term Employees Regulations.
• Declined to sign a workforce agreement for the purposes of the Fixed-term Employees Regulations.

Where a dismissal of an employee is automatically unfair by virtue of regulation 6(1), there is no minimum period of qualifying service for bringing a claim.

All employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer on any of the above grounds.  A detriment is made out if a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).

Less favourable treatment claims

Fixed-term employees who believe that they are being treated less favourably than permanent comparators on the grounds of their fixed-term status can bring claims in the employment tribunal (see Regulations 7 and 3).  Claims under the Regulations themselves must be lodged within three months of the date on which the less favourable treatment or detriment took place, or within three months of the last in a series of dates if there was a series of similar discriminatory acts or failures, subject to the rules on early conciliation. Time can only be extended where the tribunal considers this to be just and equitable.  Once an employee has established less favourable treatment or detriment, the burden of proof is on the employer to identify the reason for it.

In addition to the specific claims of less favourable treatment and automatic unfair dismissal set out in the Fixed-term Employees Regulations, fixed term employees enjoy the same statutory and common-law rights as other employees, including the right not to be unfairly dismissed, wrongfully dismissed, or dismissed for a discriminatory reason (see below).

Unfair and wrongful dismissal during the fixed term

An employee who is dismissed before the end of a fixed-term contract may have a claim for wrongful dismissal at common law, unless the contract contains a provision for earlier termination on notice and the employer has complied with that provision, or the employee has committed a repudiatory breach of contract (such as an act of gross misconduct ). The employer may have to pay damages up to the sums the employee would have earned during the remainder of the term.  They may also have a claim for unfair dismissal, subject to the usual principles governing unfair dismissal claims, but only if they have two years’ continuous service.   Any employee whose limited-term contract expires without being renewed or extended on the same terms as before will therefore have the same employment protection rights as a permanent employee (with the same length of service) who has been dismissed.

If the employer does not want to renew the employee’s contract (whether on the same terms, or at all), this will amount to a dismissal. For a dismissal to be fair (assuming the employee has sufficient service to qualify for unfair dismissal rights), it must be for one of the potentially fair reasons set out in section 98 of the Employment Rights Act 1996 (ERA 1996):

• Capability.
• Conduct.
• Redundancy.
• Contravention of a statutory obligation.
• Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held (SOSR).

The fact that the contract provides for expiry on a certain date (or on completion of a particular task or occurrence of an event) should not be conflated with the reason for dismissal (Tansell v Henley College Coventry EAT 2013 IRLR 174).  The ACAS Code of Practice on Disciplinary and Grievance Procedures, which replaced the statutory dispute resolution procedures (see Practice note, Statutory dismissal and disciplinary procedures) on 6 April 2009, expressly states that it does not apply to the non-renewal of fixed-term contracts.  However, where an employee raises a grievance relating to a proposed non-renewal – perhaps complaining that this amounts to an act of discrimination – the employer should be advised to follow the Code in respect of that grievance.

On the basis of the above, you state you have had ongoing issues with your employer since you informed them you were pregnant on the 1st March with workload, heavy lifting, lack of risk assessment etc.  I am unclear what those issues are specifically.  If you have been subjected to a detriment in some way as a result of raising concerns under Regulations 3, 6 and 7 as set out above, namely that you are being treated less favourably when compared to permanent employees, you may have a claim under the Fixed Term Employees Regulations. To bring a detriment claim, you would need to identify a comparator who would be a permanent employee in similar circumstances to yourself, but has not been subjected to a detriment.  If you are dismissed as a result of raising a concern, you could have a claim for automatic unfair dismissal as set out above under Regulation 6.

If the employer advises you in the meeting on Friday they are not renewing your contract, you are entitled to ask them to explain the reasons behind their decision-making given the email you received in February 2021 advising that your role was needed for the operation to run and the further email from the director saying your contract would be renewed.  You should raise a concern that you believe that the reason for the non-renewal of your contract could be related to your pregnancy.  If you are not satisfied with the reason provided by the employer, you could raise a grievance.   If your fixed-term contract is not renewed, you should be given notice as per the terms of your contract.  If your employer attempts to terminate your contract before the end of the fixed term contract, you may have a claim for wrongful dismissal at common law, unless the contract contains a provision for earlier termination on notice and the employer has complied with that provision.  As you do not have two years’ service, you are unable to bring a claim for ordinary unfair dismissal however the manner of the dismissal may be relevant in respect of any claim for discrimination (see below).

Pregnancy discrimination

Pregnancy and maternity is identified as a protected characteristic in the Equality Act 2010.  Pregnancy and maternity discrimination in the workplace is prohibited and it is unlawful for an employer to:

• discriminate by treating a woman unfavourably during the protected period (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy (section 18(2)); or
• discriminate by treating a woman unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave (section 18(3) and (4)).

An act of unfavourable treatment prohibited by section 18 of the Equality Act 2010 is expressly not direct sex discrimination under section 13 of the Equality Act 2010 (section 18(7), Equality Act 2010). However, a claim of direct discrimination on the grounds of pregnancy and maternity might be possible.

Pregnancy and maternity are excluded from the indirect discrimination provisions of section 19 and the harassment provisions of section 26 of the Equality Act 2010.  However, an employer is prohibited from victimising a job applicant or employee because they have made or intend to make a pregnancy and maternity discrimination complaint, or because they have done or intend to do other things in connection with the Equality Act 2010. In deciding whether a female employee has been discriminated against because of pregnancy or maternity within the meaning of section 18 of the Equality Act 2010, the test is whether she has been treated unfavourably, rather than less favourably and there is therefore no need for a comparator.

Pregnancy and maternity discrimination may be permitted in certain limited circumstances where there is objective justification and that because of the nature or context of the work, their conduct is a proportionate means of achieving a legitimate aim, for example where there is a genuine occupational requirement or for the protection of women.

As stated above, if you are informed that your contract will not be renewed at the meeting on Friday, you should ask the employer to advise you of the reasons behind their decision-making.  You have stated above that you have been having issues with the employer since you advised them that you were pregnant in respect of your workload and a failure to undertake a risk assessment.  If you believe that you are being treated unfavourably (by failing to carry out a risk assessment or in terminating your contract) by the employer “because of” your pregnancy, you may be able to bring a claim for pregnancy discrimination.  I recommend submitting a grievance to the employer if you believe this to be the case.  You will need to show, however, that pregnancy is the reason for the unfavourable treatment and not another factor.

Given the nature of the tasks/responsibilities in your job that you have outlined above, the employer may argue that because of the heavy lifting involved in the role for which you were engaged, the occupational requirement is a proportionate means of achieving a legitimate aim and that the non-renewal of your contract is objectively justified in the circumstances.  However, a failure to undertake a risk assessment would be a concern as would any subsequent dismissal in these circumstances and they may amount to discriminatory acts.  I am unclear whether it is possible or your preference to remain in the office. However, I recommend this could also be explored as suitable alternative employment at the meeting.  Any claim for pregnancy discrimination should be brought within three months less one day of the date of the actions complained of (following completion of the ACAS Early Conciliation process).

*Samantha Tanney assisted in answering this question.

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