I understand that you are asking about the circumstances in which you can be dismissed....read more
I was employed on a 12-month fixed term contract during which time I fell pregnant. My contract was due to expire this summer. Before going on maternity leave I was entitled to 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. My paid leave ended in June and I was told I could continue on unpaid leave until December except that my position may not be available after maternity leave. However, my supervisor would let me know in writing if the position was not available. So I have been in touch with my supervisors, informing them of my intention to return to work in September and the reply has been “we are waiting to hear from HR concerning your contract”. This has been ongoing since June. I have written to HR several times requesting for an update and got no response. At the end of August my manager called me in for a meeting and informed me that my contract had expired in July and it was not going to be extended because there was no funding for it. I feel that this is unfair because I have not received any written notice about this while on maternity leave.
I note from your question that you were originally employed on a 12-month fixed-term contract that started in July 2015. After you found out that you were pregnant you were told that you were entitled to 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave and that you would continue on unpaid maternity leave until December 2016. From what you have stated in your question it appears that your contract of employment was extended to December 2016 and then brought to an end early. Generally speaking, when employment ends whilst on maternity leave, the dismissal should be with full notice, or depending on the conditions of the fixed-term contract, with pay until its end date. Unless your contract of employment contained a provision for earlier termination on notice and your employer complied with the provision, you may have grounds to claim wrongful dismissal. However, to fully advise on this issue, I would need to review your contract of employment and any other written correspondence between you and your employer.
Secondly, I note that you contacted your employer on a number of occasions about returning to work in September 2016, and initially you were told by your supervisor that they were waiting to hear from HR and then you were subsequently told by your manager in late August 2016 that your contract had expired in July 2016 and that it would not be renewed as there was no funding for it. Under such circumstances you would have grounds to argue that your role was made redundant. Whilst on maternity leave you are afforded extra protection in redundancy situations as provisions apply where, if it is not practicable by reason of redundancy for you to return to your existing role, then you are entitled to be offered any suitable alternative employment with your employer, with priority over other employees.
If there was a suitable alternative vacancy then you were entitled to be offered it (before the end of your employment under your existing contract), under a new contract of employment which takes effect immediately on the ending of your employment under the previous contract (Regulation 10, The Maternity and Parental Leave etc. Regulations 1999 (MPL Regulations)). If your employer did not comply with this requirement you would have a claim for automatically unfair dismissal under section 99 of the Employment Rights Act 1996 (ERA). This is regardless of how much of your maternity leave was unexpired. The fact that you were on maternity leave and could not start to do a new role straight away does not mean that a potential job was unsuitable. Your employer would have needed to provide cover for that role (in the same way that it would have been providing cover for your now-redundant role during maternity leave). If your dismissal was directly related to your pregnancy/maternity leave, it would be both automatically unfair and discriminatory. Please note that any claim for discrimination or automatically unfair dismissal has to be submitted to an employment tribunal within three months. You would also need to go through the Acas early conciliation process before any claim can be lodged.
In addition I would note that your employer was under a duty to make “reasonable contact” with you during your maternity leave. When an employer fails to do so they risk a claim of unfavourable treatment contrary to section 18 of the Equality Act 2010 and/or unlawful detriment contrary to section 47C of ERA 1996 and/or wrongful dismissal. In the case of Visa International Service Association plc v Paul , an employee was successful in her claim that the employer had breached the implied term of mutual trust and confidence and had discriminated against her on grounds of pregnancy/maternity because she was on maternity leave when it failed to inform her of a vacancy that she would have wished to apply for. In your situation, you note that your employer failed to respond to your emails and it appears that they failed to keep you informed of important changes in the workplace and therefore they have potentially breached their duty to make “reasonable contact” with you.
I also note that your paid leave ended in June 2016. Statutory Maternity Pay (SMP) is paid for up to 39 weeks. Therefore, by way of example, if your maternity leave started on the 1st of December 2015 then you should have been paid until the 30th of August 2016. If you feel that your employer has not paid the correct SMP then complaints must be submitted to HMRC’s Statutory Payments Disputes Team within six months of the issue arising. If your employer refuses to pay SMP, following a decision by HMRC that they are obliged to do so, then they may face a financial penalty up to a current maximum of £3,000 (section 113A(6), Social Security Administration Act 1992).
In theory an unlawful deduction from wages claim could be made for non-payment of SMP, as SMP counts as “wages” under section 27 of the Employment Rights Act 1996. However, there may be little point in making an unlawful deductions claim against your employer (if HMRC made a decision in your favour), as you usually claim payment and any arrears directly from HMRC.
Due to the complexities of your matter I would recommend that you take further legal advice about your situation immediately. Should you require any further clarification on the above points then please contact Tracey Guest of Slater Heelis LLP on0161 672 1246.
*Adam Wightman assisted in answering this question.