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, if your job responsibilities have been given to another employee because of your maternity leave absence. But you need to be sure that you want to leave and can afford to do so.
Constructive dismissal is difficult to prove, so it is advisable to take advice, for example, from your union if you are a member or a solicitor before you resign. You cannot rely on getting compensation through bringing an Industrial Tribunal claim.
You may want to take into account:
Whether your health is badly affected by what is happening in work
Your finances: can you afford to resign?
Your job prospects: it is often easier to get a job when you are working
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 brought a grievance before taking the formal claim.
You should ask for the meeting to be re-arranged and explain this is because you have pregnancy-related illness. If the meeting is held without you and you are disciplined this may be pregnancy discrimination.
You can be dismissed when you are pregnant if there is a fair reason for the dismissal which is unrelated to your pregnancy, and your employer follows a fair procedure. You must not be dismissed if the reason is related to your pregnancy, pregnancy-related illness or because you are about to go on maternity leave.
If you think you may be dismissed, (for example, because your employer’s attitude to you has changed and you are being excluded or ignored, or you have been told your job is being reviewed), it is advisable to discuss your concerns with your manager to:
find out more about your employer’s thinking and seek reassurance
express your concerns
put forward possible solutions (for example how you think it would be least disruptive to cover your maternity leave), and
point out that it would be unlawful to dismiss you for a reason related to your pregnancy.
If you are dismissed because of your pregnancy, you should appeal against the decision in writing, setting out why you believe the dismissal was due to your pregnancy.
To prove discrimination, you need to be able to show that your pregnancy, pregnancy-related sickness/absence or maternity leave was a significant, important or effective cause of your dismissal.
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.
Your pregnancy or pregnancy-related sickness/absence does not have to be the only or even the main reason for your dismissal but it must be an important or substantial reason. It is advisable to take notes of all the conversations you have with your employer.
You may wish to seek further advice or information from the Equality Commission. Equality Commission - contact us
Your probation period should not be extended if the reason for your poor performance is related to your pregnancy. But, if the reason for extending your probation is due to your poor performance before you became pregnant, or is not related to your pregnancy, your probation period can be extended.
To demonstrate you have been constructively dismissed you need to show that:
your employer behaved so badly, (which includes discriminating against you), that trust and confidence between you has fundamentally broken down
you resigned because of your employer’s behaviour, and
you did not wait too long before you resigned.