Guide

Maternity leave and pay

Maternity leave and protection against detriment or dismissal

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, statutory maternity leave (SML).

Detrimental treatment and SML

You must not subject an employee to any detriment by acting, or deliberately failing to act, because she:

  • took SML
  • sought to take SML

Examples of detrimental treatment include denial of promotion, facilities or training opportunities which you would normally have made available to the employee.

If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.

Redundancy during SML

If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.

In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

  • be suitable and appropriate for her to do, and
  • have terms and conditions that are not substantially less favourable to her than if she had continued to be employed under the original contract

If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.

However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.

On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it hasn't already ended.

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

See redundancy: the options.

Dismissal on or after return to work from SML

The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:

  • has taken SML
  • benefited from the terms and conditions of employment to which she was entitled during that SML period
  • failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave

Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.

However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:

  • you could not offer her the old job
  • you - or an associated employer - offered her suitable alternative employment but she unreasonably refused

See returning to work from maternity leave.

Dismissal on grounds unrelated to SML

It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:

  • largely or wholly unrelated to her SML
  • not for any other reason that is unfair or unlawfully discriminatory

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

Dismissal of replacement employees

You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.

However, make sure you inform them that their position is only for maternity cover before they start.