Disciplinary and dismissal procedures
Can I take disciplinary action against a pregnant employee?
You can only take disciplinary action against a pregnant employee if the action is about a matter which is nothing to do with her pregnancy, for example if you think she has been dishonest. You must not take disciplinary action if this relates to your employee’s performance, which has been poor because of pregnancy related illness or another reason related to her pregnancy.
The employee says she cannot attend a disciplinary meeting because of pregnancy related sickness. Must I change the date?
You should fix a time for when the employee is well enough to attend. If you take action at the initially scheduled meeting that she cannot attend because of pregnancy related illness this may be pregnancy discrimination.
Can I dismiss an employee when she is pregnant?
Yes, but only if the dismissal is not related to the employee’s:
- Pregnancy related illness.
- Pending maternity leave, or;
If you dismiss an employee who is pregnant you must provide her with a written explanation about why she was dismissed as is the case for dismissal in general. If the employee has worked continuously for you for at least one year you must also show there is a fair reason for the dismissal and that you followed a fair procedure as required under the statutory dismissal procedure contained in the Employment (Northern Ireland) Order 2003
Is an employee allowed the opportunity to appeal against dismissal?
Yes, you are required to offer an appeal against the decision in order to comply with the law. If possible it should be heard by a person more senior than the person who made the decision to dismiss the employee.
What should I do if an employee threatens to resign, or does resign, saying this is because she has been discriminated against?
It is good practice to first find out why she says she has been discriminated against and then try to reassure her that you will take steps to investigate (if necessary) in order to resolve her concerns. If she has already resigned and you think that this is because of a misunderstanding you may want to ask her to reconsider her resignation. In a scenario like this one it is best to take advice as there may be a failure to address the grievance or a potential constructive dismissal case.
If an employee resigns during maternity leave must she give notice?
If an employee resigns during maternity leave she must give notice, as required under her contract. This does not apply if she can show that she resigned because your behaviour was a serious breach of her contract, such as discriminatory treatment. If she resigns in these circumstances, and claims constructive dismissal, she can resign either with notice or without giving notice.
A pregnant employee on maternity leave is claiming constructive dismissal. What does this mean?
In order to claim constructive dismissal your employee must show that:
You behaved so badly, which includes discriminating against her, that the trust and confidence between you has fundamentally broken down and therefore she had no option but to resign.
She resigned because of your or your employee’s behavior.
She does not wait too long before she resigns. If she does wait too long you could argue that she accepted the behaviour by continuing to work.
Can I dismiss an employee who is on maternity leave, other than for redundancy?
You can dismiss an employee if there is a lawful fair reason for the dismissal and you follow a fair procedure as set out in the legislation (see above). For example, if you discover that an employee has been dishonest; you can take disciplinary action and dismiss her, provided you follow the fair procedure in the legislation, that is, the Employment (Northern Ireland) Order 2003
You must not dismiss an employee on the grounds of her pregnancy or maternity leave or for reasons relating to her pregnancy or maternity leave. That would be pregnancy or maternity discrimination.
Must I provide written reasons for dismissal during maternity leave?
Yes, you must write to the employee setting out the reason for her dismissal.
An employee raises concerns about being treated unfairly on grounds of her pregnancy or maternity leave, but I don't agree
It will depend on the circumstances but in any situation, if an employee suggests she has been treated badly on the grounds of her pregnancy or maternity leave and this is not the case, in your view, it is good practice to discuss her concerns, either informally or via a formal grievance, if that is her wish. This provides you with the opportunity to reassure the employee that her treatment was not due to her pregnancy or maternity leave and to assure her that you will investigate it. It is good practice to explain the situation from your point of view and clarify any misunderstandings. For example:
If there has been a misunderstanding, set out why. For example, if she believes that other employees received a pay rise, but not her, you could explain that no-one received a pay rise if that is the case, or say why she did not.
If the allegation is about another employee’s treatment of her, say that you will investigate and get back to her.
If she has been put at risk of redundancy and believes she is the only one and the reason is her pregnancy, explain why there is a redundancy situation and why it is not related to her pregnancy. If possible, answer any questions she has.
If she is concerned about her work being changed after she told you of her pregnancy, it is best practice to agree that it should not be changed or agree an alternative which is acceptable to her.
If you have criticised her performance and she says this was affected by pregnancy related illness, you could explain how your criticisms are unrelated to her pregnancy.
What should I do if an employee raises a grievance without having any informal discussion?
If an employee raises a grievance and she has made no informal attempt to discuss her concerns before her grievance that is her decision and there may well be very good reasons why she wishes to take the formal approach and these should be elicited and respected. From here you should adhere to the requirements of the Labour Relations Agency's Code of Practice on Discipline and Grievance