Dismissal during pregnancy, or maternity, adoption or shared parental leave
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 as this would be discriminatory.
This article provides advice on rights and entitlements that apply to dismissal during pregnancy and family-related leave:
- Unfair 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.
Unfair dismissal – the basics
If an employer does not have a potentially fair reason for dismissal and/or does not use a fair and reasonable procedure when dismissing an employee (even if they have a fair reason), the affected employee may have a claim for unfair dismissal if they qualify. To qualify the employee needs to have been employed for at least 2 years, unless the dismissal is for a reason that makes it “automatically unfair”. In automatic unfair dismissal the employee does not need to have the 2 years’ continuous service.
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
If an employer has a fair reason to dismiss a pregnant employee, then they may be able to dismiss without giving rise to claims outlined above. There are specific rules that are in place and additional obligations for redundancy during pregnancy, maternity leave and on return from maternity leave.
A pregnant woman can be fairly dismissed if the main reason for dismissal is a fair reason and is unconnected to her pregnancy. If the reason for dismissal is related to her pregnancy, this is likely to amount to unfair dismissal (and likely to be automatically unfair) 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?
Under health and safety legislation, your employer must make sure that working conditions do not put you or your baby’s health at risk and must take steps to remove or reduce the 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.
If the employer takes steps to penalise you in any way for any of the reasons above then if this amounts to dismissal this is likely to be considered linked to your pregnancy and be automatically unfair.
Redundancy during pregnancy, during statutory leave or shortly after leave
It is possible for an employer to dismiss an employee as redundant while pregnant or on a period of statutory leave. However, the dismissal will be automatically unfair if the employee was selected for redundancy as a result of the pregnancy or the statutory leave.
In addition, if you are made redundant during a period of maternity leave, you are entitled to be offered a suitable alternative vacancy where one is available. Since April 2024, this right to be offered a suitable alternative vacancy applies not only during the period of statutory maternity or adoption leave but also from the time when you notify the employee that you are pregnant until 18 months after the expected week of childbirth (EWC) or, in an adoption situation, 18 months after the date of placement. Where you are taking a period of shared parental leave and you have taken six consecutive weeks, then your right to be offered suitable alternative employment will continue until 18 months after the EWC or the date of placement. We have a detailed advice page on this.
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 follow 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.
After a period of family-related leave, you generally have the right to return to your old job or a suitable alternative role. 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 allow you to return to another job which is both suitable for you and appropriate and with terms and conditions that must not be less favourable than they would have been had you not been absent. 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 role 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 except, for example, if there has been a redundancy situation during your period of leave. 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 not at least 1 week more 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 3 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?
Whilst there is no legal obligation to inform your employer of your pregnancy, it is good to do tell them as early as possible, in order to benefit from health and safety protections and, time off for antenatal care.
In any event, in order to exercise the right to maternity leave and benefit from SMP you must inform your employer at the latest at least 15 weeks before the beginning of the week the baby is due. See our article on Telling your employer you are pregnant and our article on Statutory Maternity Pay.
If your employer were to dismiss you and the principal reason for the dismissal is related to your pregnancy then the dismissal will be automatically unfair and could amount to unlawful discrimination because of pregnancy or maternity.
If you are worried that your employer will discriminate against you because you are pregnant, it is a good idea to inform them of your pregnancy in writing. You will then have proof that your employer knows that you are pregnant in the event you are subjected to unfavourable treatment because of your pregnancy.
I was dismissed before I told my employer I was pregnant, but I think my employer suspected I was pregnant. Is this fair?
An employer can dismiss a pregnant woman for one of the fair reasons set out in statute, such as capability, conduct or redundancy and as long as the principal reason is unconnected to the pregnancy. If you are at risk of dismissal for redundancy you have additional protections if you are pregnant, on maternity leave or have recently returned from maternity leave.
It is for the employer to establish the reason for the dismissal and that it was a fair reason unconnected with the pregnancy and that a fair procedure was followed. If your employer genuinely did not know you were pregnant, then the reason for dismissal could not have been connected to it.
If you are claiming discrimination then the employer must be aware of the pregnancy and this will be more difficult to prove if you were dismissed prior to you notifying them that you were pregnant. In relation to a claim for discrimination it isn’t necessary for the pregnancy to be the sole or principal reason for the dismissal, it is sufficient that it had a significant influence on the decision to dismiss.
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.
I told my employer that I am pregnant and they gave me 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.
If you are subjected to a detriment for a reason related to your pregnancy, then this is likely to amount to unlawful discrimination. Subjecting an employee to an unsubstantiated performance review could amount to unfavourable treatment. You would need to be able to show that the reason for the unfavourable treatment was because of your pregnancy.
An employer should not take any action under its disciplinary or capability procedures against a pregnant employee where the reason for her poor performance is due to her pregnancy, for example, absences due to pregnancy-related illness. However, it can raise work performance issues with an employee while she is pregnant if these issues arose before her pregnancy, or if the reason for her poor performance is unrelated to her pregnancy.
Pregnancy can be physically and mentally taxing, so if you are struggling to perform your role because of your pregnancy you may need to explore whether any adjustments could help and may want to 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 unfavourably because of your pregnancy or your intention to take maternity leave. All employees are protected from discrimination because of pregnancy or childbirth, even if they are still on probation or have only been employed for a short time. If you can show that the extension of the probation was unfavourable treatment as a result of the pregnancy then this could amount to unlawful discrimination.
If the employer has a contractual right to do so, it is not necessarily less favourable treatment for an employer to extend an employee’s probationary period, as there may be valid reasons for extending the probation. For example, if the pregnant employee has taken time off work for ante-natal appointments, it may be a fair adjustment to extend the probation period to allow the employee the same length of time to prove themselves and a better opportunity for the employer to make an informed assessment on their performance.
The fact that you have become pregnant or are pregnant during your probation period should not impact your entitlement to maternity leave. 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 pregnant or on maternity leave and you are dismissed (for example, because of a redundancy or reorganisation), you will still be entitled to Statutory Maternity Pay (SMP) if the contract is terminated after the date on which they qualify for SMP (the 15th week before the week that the baby is due).
If you are on maternity leave when you are dismissed, your maternity leave will come to an end when your employment ends. However, your employer must continue to pay SMP for the remainder of the SMP period (or until some other disqualifying event e.g. starting a new job). This is because SMP entitlement, once triggered by “ceasing work” after the Qualifying Week, is not dependent on remaining an employee.
If you are dismissed before the qualifying week (the 15th week before the expected week of childbirth), you will not get Statutory Maternity Pay but you may be able to claim Maternity Allowance.
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?
Disciplinary action must not be taken for a reason related to pregnancy, childbirth or absence on maternity leave. However, an employer may take disciplinary action against an employee during pregnancy or maternity leave, so long as they have reasonable grounds to do so which are unrelated to the pregnancy or maternity leave and are appropriate in the circumstances. If this is the case, the employer should notify the employee without undue delay and the employer should follow a fair disciplinary process (usually set out in the employer’s disciplinary procedure). The employee should also be reminded of their statutory right to be accompanied during any disciplinary meetings and be given the right to appeal against any disciplinary sanction.
Acas has detailed advice on what constitutes a full and fair procedure.
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 believe I have been unfairly dismissed?
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 follow a fair procedure. If you are dismissed because you took or intended to take family-related leave, or for a reason connected to pregnancy, there may be a claim for automatic unfair dismissal and discrimination.
If an employee would like to challenge a dismissal which they believe to be unfair, they should first utilise the internal appeals process – if the employer has given the employee the employee the right to appeal and if the dismissal took place sufficiently recently that an appeal would be appropriate. If the employee is unable to appeal or has already done so unsuccessfully, then the next step would be to contact ACAS prior to lodging a claim with the Employment Tribunal.
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).
There are strict time limits for making claims so you should not delay doing this. You can get more general advice on unfair dismissal from Acas or contact Working Families for more advice.
My employer wants to dismiss me. What if I resign while on family-related leave?
If an employee feels like they are being forced into resigning because of the behaviour of their employer, they should consider their options and should seek advice as a matter of urgency.
You should always seek advice before resigning, as it can be difficult to prove you have been constructively dismissed. For more information, see our page on Constructive Dismissal.
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 and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
We would love your feedback
Would your employer benefit from support from Working Families?
Would your employer benefit from some support & guidance from Working Families? If you would like to make your employer aware of how Working Families can help them, we have an introduction letter template available that you can give to the relevant person in your organisation.
The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.