It is possible to be dismissed (sacked or fired) when pregnant or during family-related leave (maternity, adoption or shared parental leave), but your dismissal should be fair. You should not be dismissed because of your pregnancy or family-related leave.
This article provides advice on rights and entitlements that apply to dismissal during pregnancy and family-related leave:
- Fair dismissal – the basics
- Dismissal during pregnancy
- Dismissal during or shortly after family-related leave
- Notice period and pay
- Frequently asked questions (FAQs)
For other information and advice, see our other pages on:
- Unfair dismissal
- Maternity and Pregnancy Discrimination – a guide to your rights
- Pregnancy and Maternity Discrimination: Frequently Asked Questions
If you are pregnant and facing redundancy, see our page on Redundancy while pregnant, or on maternity, adoption or shared parental leave.
If you are pregnant and being asked to return to work but are concerned about the risks due to COVID-19, see our page on Coronavirus (COVID-19) – Rights for new and expecting parents.
Fair dismissal – the basics
In order to fairly dismiss any employee, regardless of their pregnancy or family leave status, employers must have a fair reason and use a fair and reasonable procedure.
If an employer does not have a fair reason or does not use a fair and reasonable procedure, or the dismissal is considered automatically unfair, then the affected employee has a claim for unfair dismissal.
For more information on:
- What is a fair reason for dismissal?
- What is a full and fair procedure?
- What is automatic unfair dismissal?
…see our article on Unfair dismissal.
Dismissal during pregnancy
It is possible for an employer to dismiss a pregnant employee by following the normal rules of fair dismissal outlined above.
A pregnant woman can be fairly dismissed if the main reason for dismissal is unconnected to her pregnancy. If the reason for dismissal is related to her pregnancy, this is likely to amount to unfair dismissal and discrimination.
Examples of reasons related to pregnancy include illness or sick leave taken due to pregnancy, time off needed for antenatal appointments, or poor performance due to pregnancy-related fatigue.
Capacity, performance and pregnancy
Pregnancy can be physically and mentally taxing. If you are unable to do your job because you are ill, you may need to take sick leave. See our page on Your rights if you are ill during pregnancy.
If you are unable to do your job because it is unsafe for you or your baby, or you are less able to do your job because of your pregnancy, your employer should treat this as a health and safety issue and make adjustments for you. They should not treat it as an issue of sickness, incapability or poor performance. See our page on Do I have to be put on sick pay because I can’t do my usual work during pregnancy?
Your employer must make sure that working conditions do not put you or your baby’s health at risk. As soon as your employer has been informed in writing that you are pregnant (this can include a sick note for pregnancy-related illness), and a risk arising from your work has been identified, a personal health and safety assessment must be done for you. For more information, see our page on Health and Safety rights for pregnant women.
Dismissal during or shortly after family-related leave
It is not necessarily unlawful to dismiss an employee while they are on maternity, paternity, adoption or shared parental leave. However, the dismissal must be for a fair reason and following a fair procedure.
If you are dismissed because you took or intended to take family-related leave, or for a reason connected to your leave, you may have a claim for automatic unfair dismissal and discrimination.
While on family-related leave, you have the right to return to your old job. Your rights differ slightly depending on the type and length of leave taken. If you are not given your old job back, this may amount to unfair dismissal and discrimination.
Return to work – Maternity and Adoption Leave
When you go back to work after Ordinary Maternity Leave (the first six months of maternity leave) you have the right to return to your old job on your old terms and conditions.
When you go back to work after taking Additional Maternity Leave (any part of the second six months of maternity leave) you have the right to return to your old job on your old terms and conditions unless it is “not reasonably practicable”, in which case your employer must offer you a suitable alternative job on similar terms and conditions.
The rules for Adoption Leave are the same.
Return to work – Shared Parental Leave
The rules for Shared Parental Leave (SPL) are similar. If you take SPL, you have the right to return to the same job if you take 26 weeks or less of statutory leave in total (including maternity, paternity, and shared parental leave).
If you take more than 26 weeks of statutory leave in total, then you have the right to return to your old job on your old terms and conditions unless it is “not reasonably practicable”, in which case your employer must offer you a suitable alternative job on similar terms and conditions. For more information, see our page on SPL – Nuts and bolts and top tips.
It is very rare for it to “not be reasonably practical” to give you your old job back. For more information, see our article on What happens when I return to work at the end of my maternity leave?
Dismissal and statutory pay
If you are dismissed during maternity leave you are still entitled to receive Statutory Maternity Pay or Maternity Allowance for the full period, or until you get a new job. If you get notice pay, your employer may deduct maternity pay for the same period from the notice pay.
If you are dismissed after the start of your first ‘block’ of Shared Parental Leave, you should receive Shared Parental Pay for the full period, or until you get a new job. If you get notice pay your employer may deduct Shared Parental Pay for the same period from the notice pay.
If you are dismissed during paternity leave after your child is born, you should still receive your paternity pay for the full period, or until you get a new job. If you get notice pay your employer may deduct paternity pay for the same period from the notice pay.
If you are dismissed after the beginning of the week during which you were notified of being matched with a child for adoption, you should still receive Statutory Adoption Pay for the whole period, or until you start a new job. If you get notice pay your employer may deduct adoption pay for the same period from the notice pay.
Notice period and pay
If you are dismissed during pregnancy or family-related leave, you are entitled to a paid notice period (unless your dismissal was due to gross misconduct or a serious breach of your employment contract).
What notice period am I entitled to?
If your employer is dismissing you, by law they must give you a minimum amount of notice – this is known as statutory notice. How much you get depends on how long you’ve been employed. If you have been employed by your company for 2-12 years, you will get one full weeks’ notice for every year you have worked for the company up to a maximum of 12 weeks.
However, most contracts will have a different period of notice – this is called contractual notice.
Your employer should give you whichever notice period is longer.
What notice pay am I entitled to?
If your notice period covers a period of your family leave, notice pay is a complex issue and the rules are not very clear. How much pay you are entitled to depends on whether your contractual is at least one week longer than your statutory notice period.
If your contractual notice period is at least 1 week more than the statutory notice period, your employer only has to pay SMP/ShPP/SAP during the notice period (for the weeks that you are entitled to it). For instance, if you entitled to 4 weeks’ contractual notice and 3 weeks’ statutory notice, your employer does not need to pay you notice according to your contractual wages for parts of your notice period that you are on statutory leave. Your employer only has to pay your notice according to your contractual wages for periods that you would have been working, plus your full SMP/ShPP/SAP entitlement.
If your contractual notice period is at least 1 week less than the statutory notice period, then you would be entitled to full pay for the notice period according to your contractual wages. If you are receiving SMP/ShPP/SAP for some or all of this period, then this would be offset/included against any notice period you would receive. For instance, if you are entitled to 2 weeks’ contractual notice, and 3 weeks’ statutory notice, you would be entitled to your full pay for 3 weeks less any SMP/ShPP/SAP payments you will be entitled to during that period. You should still receive your full SMP/ShPP/SAP entitlement.
You employer can keep you employed until the end of your notice period, or choose to give you pay in lieu of notice (PILON). In order to give you PILON, your employer must put a clause in your contract allowing for it. If you are given PILON, your employment ends immediately and you do not need to serve your notice period.
If your contract allows your employer to give PILON, your employer can deduct your SMP/SAP/ShPP from the payment (but they must still pay your full SMP/SAP/ShPP entitlement). If your contract does not allow your employer to give you PILON, and they want to PILON anyway, they cannot deduct your SMP/SAP/ShPP and should give you full notice pay plus your full SMP/SAP/ShPP entitlement.
Because the law is not clear, many employers choose to pay full notice pay plus SMP/SAP/ShPP. If this is not the case, and you are unclear about your employer’s calculation, you should seek advice.
Frequently Asked Questions
I’m afraid my employer will dismiss me when they find out I’m pregnant. Do I need to tell them?
There is no legal obligation to tell your employer that you are pregnant. It is up to you when you tell your employer that you are pregnant.
There are reasons why it is a good idea to inform your employer of your pregnancy – for instance, in order to benefit from health and safety protections and request maternity leave. See our article on Telling your employer you are pregnant.
To benefit from maternity leave, you should tell your employer by the end of the 15th week before the week your baby is due, when you give notice of your intention to take maternity leave and claim Statutory Maternity Pay (SMP). See our article on Statutory Maternity Pay.
If you are worried that your employer will discriminate against you because you are pregnant, it is a good idea to inform them in writing. Once you have told your employer that you are pregnant, in writing, you will have proof that your employer knows that you are pregnant and therefore be protected against any unfavourable treatment.
I was dismissed before I told my employer I was pregnant, but I think my employer suspected I was pregnant. Is this fair?
If your employer did not know that you are pregnant, it is not possible for them to have dismissed you because of your pregnancy.
However, if your employer believes or suspects that you are pregnant, regardless of whether it is true, and treats you less favourably based on their belief, you could have a claim for unfair dismissal and discrimination.
We recommend that you consider telling your employer as early as possible, in writing, about your pregnancy if you want to be protected from pregnancy and maternity discrimination. See our article on telling your employer you are pregnant.
I told my employer that I am pregnant and they gave be a bad performance review. Can they sack me?
It is unlawful for your employer to treat you less favourably because of your pregnancy or your intention to take maternity leave. This means that your employer cannot give you a bad performance review because you are pregnant or for a reason connected to your pregnancy, like sick leave.
Whether a bad performance review is less favourable treatment depends on the circumstances. If there are reasons unconnected to your pregnancy for extending your probationary period, then it may not be less favourable treatment. However, if the reasons are connected to your pregnancy, then if could be less favourable treatment.
Pregnancy can be physically and mentally taxing, so it is not unreasonable for your employer to expect to have to make adjustments for you. If you are less able to do your job well because of your pregnancy, you should point out to your employer, in writing, that the reason you are having difficulty performing is due to your pregnancy. You should also ask your employer for a health and safety assessment to ensure that your working conditions are safe for both you and your baby. For more information, see our page on Health and Safety rights for pregnant women.
I told my employer that I am pregnant and they extended my probation. Is this less favourable treatment?
It is unlawful for your employer to treat you less favourably because of your pregnancy or your intention to take maternity leave. This means that your employer cannot extend your probationary period because you are pregnant or for a reason connected to your pregnancy, like sick leave.
If there are reasons unconnected to your pregnancy for extending your probationary period, then it may not be less favourable treatment. The starting point is to check your contract and your employer’s probation policy. You should pay particular attention to the length of the probation period, if your employer can extend the probation (and, if so, how) and the requirements to pass the probation period.
If your contract does not provide information extension of the probationary period, your employer cannot extend the period without your agreement. To extend the period without your agreement would amount to an imposed change, and potentially a breach of contract. For more information, see our webpage on changing terms without consent: Employer changed my terms of employment without consent – what are my rights? The law on imposed changes and “new for old” contracts
Unfortunately, just because it is unlawful for your employer to treat you less favourably because of your pregnancy doesn’t stop your employer from acting unlawfully. So we recommend that you ask your employer to give you clear reasons in writing why they are extending your probationary period. If there are genuine issues with your performance that don’t relate to your pregnancy, then it is worth engaging with them – for example, you could ask your employer for a plan of areas they require improvement on, so you know what you need to do.
The fact that you have become pregnant during your probation period should not impact your entitlement to maternity leave – your rights are the same. More information can be found here: Pregnant and on probation at work? Your rights
If I’m dismissed while pregnant, am I still entitled to Statutory Maternity Pay?
If you are dismissed in or after the qualifying week but before your maternity leave starts, you are still entitled to Statutory Maternity Pay (as long as you meet the qualifying conditions) for 39 weeks or until you start a new job.
I’m pregnant or on family-related leave and my employer has started disciplinary proceedings against me. What should I do?
If you are on family-related leave, your employer may take disciplinary action against you as long as they are not taking action because you are pregnant or on family-related leave.
The disciplinary action must be for a fair reason. Usually disciplinary action is taken where there has been alleged misconduct or poor performance. The reasons for the alleged misconduct or poor performance must not be due to your pregnancy or family-related leave.
Your employer must also follow a fair procedure, notify you in writing of the alleged misconduct, and give you an opportunity to put in your case. Your employer must also make a fair decision. Acas has detailed advice on what constitutes a full and fair procedure.
Going through a disciplinary procedure can be very stressful, so it is not unreasonable for you to have concerns about your mental health and impacts on your pregnancy or post-partum depression.
If you are pregnant or on family-related leave and facing disciplinary action, you should seek advice. If you are a member of a union, they should also provide you with support.
What do I do if I feel I have been unfairly dismissed?
If you feel your have been dismissed unfairly, you can ask your employer for the reasons for your dismissal in writing and appeal their decision to dismiss you. Acas has useful guidance on Appealing a disciplinary or grievance outcome.
You should also seek advice if you believe that you may have been dismissed unfairly or for a discriminatory reason, for example, because you are female, pregnant, on family-related leave or because of another protected characteristic (race, sexual orientation, gender reassignment, marital status, age, disability, religion or belief). In this case, you will not need two years’ service to bring a claim.
My employer wants to dismiss me. What if I resign while on family-related leave?
You can resign from your job during family-related leave, but you may lose any claim to unfair dismissal unless you can prove constructive dismissal. Constructive dismissal happens when you are forced to resign because of something your employer has done, or is doing, which is in breach of your contract and serious enough that you can consider the contract at an end.
If you resign while on maternity leave, and you were receiving Statutory Maternity Pay, your employer will continue to pay your full entitlement, until the end of 39-week pay period or until you get a new job. Similar rules apply for Adoption Leave.
The rules for Shared Parental Pay (ShPP) are more complicated. To be eligible for ShPP you need to be continuously employed for 26 weeks before the 15th week before your child is due, and remain in employment up until the week before you want your first week of Shared Parental Leave (SPL) to start.
If you resign and you are on your notice period, you remain continuously employed and can take your SPL during your notice period. You will be entitled to any ShPP you have already booked for that block of leave, even if your contract ends during your Shared Parental Leave, until the end of the block or you get a new job.
If your contract comes to an end before the week before your SPL starts, you won’t be entitled to any ShPP. If you are taking Shared Parental Leave in discontinuous blocks, you need to be employed until (or your notice has to end after) the week before each block of SPL to be entitled to receive ShPP for that block.
Remember to check your contract or employer’s policy if they offer any enhanced maternity or shared parental pay.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.