Dismissal during maternity leave, notice and notice pay
(including constructive dismissal: resigning because of your employer's behaviour)
Can I be dismissed during my maternity leave, other than for redundancy?
You can be dismissed if there is a fair reason for the dismissal which is unrelated to your pregnancy or your maternity leave, and your employer follows a fair procedure. You must not be dismissed if the reason is because of your pregnancy, pregnancy-related illness or maternity leave.
Your pregnancy or your maternity leave do not have to be the only reason for the dismissal – it will be pregnancy or maternity discrimination if it is a substantial or effective reason.
I am worried that I might be dismissed because I am on maternity leave, what can I do?
If you think you might be dismissed, (for example, because your employer’s attitude to you has changed and they are excluding/ignoring you, or have said that your job is being reviewed), it is advisable to discuss your concerns with your manager to find out more about your employer’s thinking, express your concerns and seek reassurance that you will not be dismissed.
Yes, generally you should appeal against the decision setting out why you believe the dismissal was due to your pregnancy or because of your maternity leave. It is advisable to take notes of all the conversations you have with your employer.
To prove discrimination, you need to be able to show that your pregnancy, pregnancy-related sickness or maternity leave was a significant, important or effective cause of your dismissal. A tribunal should take account of all the circumstances relating to your pregnancy and maternity leave, for example how you were treated after you said you were pregnant.
Your employer must write to you setting out the reason for your dismissal. If they do not do so, you should write and ask for reasons. Your employer will be legally required to respond, setting out the reasons for your dismissal.
It is advisable to take notes of all the conversations you have with your employer.
Yes, your employer is legally required to write to you setting out the reasons for your dismissal. If they do not do so, you should write and ask for reasons.
You could resign and claim constructive dismissal if you have been discriminated against and trust and confidence between you and your employer has gone; for example, your job responsibilities have been given to another employee because of your maternity leave. But you need to be sure that you want to leave and can afford to do so.
Constructive dismissal is difficult prove so it is advisable take advice, for example, from your union, or from a solicitor before you resign. You cannot rely on getting compensation through bringing an industrial tribunal claim.
You may want to take into account:
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Whether your health is badly affected by what is happening in work
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Your finances: can you afford to resign?
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Your job prospects: it is often easier to get a job when you are working
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The strength of any claim you have. You should seek professional advice.
Before resigning, you should explain in writing why you are planning to do this and wait for your employer to respond. You should include the main reasons why you decided to resign and the last incident, which led to your decision. It may be worth taking some advice about the exact wording, but the letter should be written by you.
If your employer has a grievance procedure, it is advisable to raise a grievance under that. If you do bring a tribunal claim, compensation may be reduced if you have not raised a grievance before taking the formal claim.
Generally, you should resign soon after the bad treatment, as if you carry on working your employer may argue that you accepted their behaviour, which would weaken any claim you might have at an industrial tribunal. In the meantime, you should write to your employer to make it clear that you object to the discriminatory treatment so it cannot be said that you accepted it.
Yes, usually it is best to set out your concerns in writing before resigning and wait for your employer to respond. If you do bring a tribunal claim, compensation may be reduced if you have not brought a grievance before bringing the claim.
To demonstrate that you have been constructively dismissed you need to show that:
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your employer behaved so badly, (which includes discriminating against you), that trust and confidence between you has fundamentally broken down
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you resigned because of your employer’s behaviour, and
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you did not wait too long before you resigned.
If you resign during maternity leave you must give notice, as required under your contract. This does not apply if you can show that you resigned because of your employer’s behaviour, if this amounts to a serious breach of your contract, such as discriminatory treatment. If you resign in these circumstances and claim constructive dismissal, you can resign either with notice or without giving notice.
The law is not clear on your entitlement to notice pay. In this instance we suggest taking legal advice.