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By law, pregnancy is a protected characteristic. This means if you’re pregnant, it becomes unlawful to treat you less favourably than colleagues because of that characteristic.
This protection extends beyond the actual pregnancy itself, where discrimination could take place because of the fact that a woman was pregnant, or due to associated activities or requirements. However, this would normally go on to fall under gender discrimination.
But these protections only extend to the fact of pregnancy. In plain terms, if you are pregnant and treated differently because of reasons unrelated to your pregnancy, this may not constitute discrimination.
If the employee were not pregnant, would she have failed her improvement plan and faced dismissal?
Sacking a pregnant woman, or indeed any employee, based off a theoretical outcome is dangerous. In this case, this is a hypothetical situation that could go either way.
If the employee’s performance was particularly bad prior to pregnancy, an employer could take the risk of sacking them and hope for the best. Obviously, this comes with risk.
A more nuanced approach would be to offer reasonable adjustments to allow more flexibility in policies and working practices for the pregnancy. If the employee is still not able to perform to the required standard, any subsequent dismissal would likely be much safer.
Would this be unfair dismissal as the dismissal was ultimately down to pregnancy, a protected characteristic?
It depends on how each side argues their case and how persuasive those arguments are. Remember that protected characteristics don’t mean employees are automatically immune from dismissal.
If the employee was showing improvement, but on discovering she is pregnant her performance drops, arguably this might be related to pregnancy. If the employer makes no reasonable adjustments and the employee is dismissed, it may constitute unfair dismissal.
Did the employee know herself that she was pregnant at the time?
An employer is under no obligation to make reasonable adjustments for a condition they are unaware of. The same is true if an employee refuses to disclose their circumstances.
In short, if the employee doesn’t tell their employer of the pregnancy, there is nothing the employer can do. Moreover, there is no legal expectation on the employer.
Issues arise if the employer suspects or believes the employee is pregnant. In such cases, they need to offer the employee the same protections as if she were pregnant.
What if the employee works in a hazardous environment that could cause harm to the baby?
Risk to an unborn child is a health and safety risk and employers need to treat it as such. If a pregnant woman can no longer perform all her employment duties due to risk to the baby, the company will either need to make adjustments or find her an alternative duty.
If the employer knew that the employee was pregnant, did they make adequate reasonable adjustments?
This depends entirely on the size of a business, the number of people it employs and the revenues it drives.
What constitutes ‘reasonable’ for a small business will differ vastly from that of a large business. For example, a small business operating out of offices spread across multiple floors that employs a wheelchair user may find it reasonable to install a ramp into the building and create a workspace on the ground floor. A large business might need to install a lift, or widen doorways at a greater cost than that of a small business. Sacking a pregnant woman who had no reasonable adjustments in place isn’t advisable, even if she was performing poorly.
It’s easy to see from these questions why a ‘hands off’ approach is much more palatable for employers. Even for solicitors, particularly those who don’t regularly practice employment law, these issues can make you pause for thought. The number of different types of scenario that could arise are endless. That’s why it’s so important to examine each case individually.
So when can you sack a pregnant woman?
In the example above, where a woman’s pregnancy has led to her termination from an underlying performance issue, it’s possible to argue that this wasn’t due to pregnancy discrimination.
At a basic level, you would look at evidence such as what the employee’s historic performance record was to see whether this was an ongoing issue.
The employer would need to have put in place reasonable adjustments to accommodate the pregnancy, for example allowing more instances of lateness or sickness. This would also include other physical adjustments such as allowing the employee to sit while working. How large these adjustments are would rely on the size of the business.
Even if these changes might constitute adequate adjustments, you still have to hope that the employment tribunal agrees with you as the employer. As with any matter that goes before a judge, having a strong case only improves your chances of success. It does not guarantee it though.
Let’s not forget too that the employment tribunal is generally ‘cost neutral’. This means that you cannot ‘win’ any compensation from the employee in the employment tribunal. There are exceptions to this, but realistically as an employer you shouldn’t expect anything back. It also means that win or lose, you will still need to pay your solicitor’s legal fees. In fact, the only cost you might save is the theoretical potential wage cost of that employee.
Joseph's top tip
As with any employment issue, keeping good written records of all communication is key.
Pregnancy discrimination-related or not, as an employer, if you fail to maintain written notes, email trails and copies of letters, you may find it impossible to rely on any substantial evidence later down the line, if needed.