Precedent 9: Dismissal of a pregnant employee during probation

Dismissal of a pregnant employee during the probationary period following absence with pregnancy-related sickness

Page contents

• Example Tribunal Claim Form – Box 8.2
• Actions complained of
• Applicable Law
• Additional compensation
• Comments on draft claim

This precedent covers these issues:

• Unfair dismissal
• Failure to follow a fair disciplinary procedure
• Failure to inform of the right to be accompanied to a disciplinary meeting
• Wrongful dismissal due to failure to provide notice
• Discrimination on the grounds of pregnancy
• Additional compensation

The probationary period is an initial period at the start of an employee’s employment, where an employer can legally dismiss the employee with little or no notice.

If you have been dismissed for a reason related to your pregnancy or maternity leave during your probationary period, then this will be considered automatically unfair, and you may be able to make a claim against your employer.

We have an advice page about your rights at work when you are pregnant and on probation.

Example Tribunal Claim Form – Box 8.2:

1. I started work for the Respondent company as an online sales assistant on 6 May 2024. My contract of employment contained a three-month probationary period, which was due to expire on 5 August 2024. The probationary period could be extended if I was absent from work for a period exceeding one week.
2. On 17 June 2024, I told my line manager, Carlos Webb, that I was pregnant. Mr Webb congratulated me, but chuckled and described the situation as “unfortunate timing”. I did not think any more of it.
3. On 24 June 2024, I left work early because I was feeling unwell. I visited the hospital that afternoon and was diagnosed with hyperemesis gravidarum, a pregnancy-related sickness.
4. The condition meant I was unable to return to work until the morning of 4 July 2024, meaning I had missed 7.5 working days. I also missed a further 5 working days due to the condition throughout the remainder of my three-month probationary period.
5. No concerns were raised about my competence, conduct, or periods of absence during this time.
6. On 29 July 2024, Mr Webb scheduled a meeting to discuss my performance during the probationary period. At that meeting, Mr Webb informed me that it would be my last day as I was “not providing any value” to the company. Mr Webb stated that my work was of unsatisfactory quality, noting particularly that I was not dealing with customer complaints quickly enough. I explained that we had been receiving greatly increased numbers of customer complaints due to ongoing technical issues with the company’s website, which was outside of my control. Mr Webb did not listen.
7. At that meeting, I also asked for my probationary period to be extended by 12.5 days to account for my absence, as permitted by my contract of employment. Mr Webb stated that his decision was final and there was no place for me at the company going forwards.
8. The meeting on 29 July 2024 was the first time I had been made aware of concerns about my performance. I was also not informed prior to the meeting on 29 July 2024 of any details regarding my alleged poor performance.
9. [On 5 August 2024 I sent the Respondent a list of questions about my performance and asked for written reasons for my dismissal. The Respondent has failed to reply.]
10. The treatment and actions by the Respondent have affected me in the following ways [DETAIL EMOTIONAL AND OTHER IMPACT AS EVIDENCE FOR INJUSTY TO FEELINGS]. [I have [not] found alternative employment since the date of my dismissal [DETAILS].]
11. I believe I was discriminated against on the grounds of my pregnancy contrary to the Equality Act 2010: (i) in the discriminatory comments about my pregnancy when I notified my employer I was pregnant (ii) in the refusal to extend my probationary period to account for my pregnancy-related sickness absence as set out at paragraph 7 above; and (iii) in my dismissal. This constituted unfavourable treatment because of my pregnancy and because of illness suffered as a result of my pregnancy during the protected period contrary to s18(2) Equality Act 2010.
12. I believe my dismissal was automatically unfair because I was dismissed for a reason related to my pregnancy contrary to s 99 of the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999.
13. I believe I also have a claim for detriment under section 47C, Employment Rights Act 1996 and regulation 19, Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)).
14. I was not given any letter setting out the reasons why I was dismissed. This is contrary to s92(4) of the Employment Rights Act 1996 and I claim a declaration and compensation under s93 of the Employment Rights Act 1996.
15. Contrary to the Acas Code on Disciplinary and Grievance Procedures, I was not informed of my right to be accompanied to my disciplinary hearing.
16. I was entitled to the statutory minimum of one week’s notice under s86 of the Employment Rights Act 1996. I was not paid any money in lieu of notice and I would like to claim the balance of one week’s money.
17. I also seek the following remedies: (a) compensation for financial loss during my employment and compensation in respect of my future losses of earnings as a result of discrimination and unfair dismissal assessed as follows [INSERT]; (b) an award for injury to feelings as a result of the discrimination; and (c) an uplift of 25% to compensation awarded because of unreasonable failure to comply with the ACAS Code.

Actions complained of

Always identify the actions complained of first. Here, these are:

• Unfair dismissal.
• Failure to comply with s92(4) of the Employment Rights Act 1996 when dismissing the claimant (the claimant was not provided with reasons for her dismissal).
• Failure to inform the claimant of her right to be accompanied to her disciplinary hearing.
• Wrongful dismissal due to failure to provide notice.
• Detrimental treatment because of pregnancy
• Failure to pay the claimant a payment in lieu of notice.
• Failure to follow the Acas Code on Disciplinary and Grievance Procedures.
• Pregnancy-related discrimination (failure to extend the claimant’s probationary period to account for pregnancy-related sickness absence).

It is very important not to miss tribunal time limits. These can be complicated.

Applicable law and guidance

Pregnancy-related discrimination under the Equality Act 2010

The claimant is claiming that she was discriminated against by reason of her pregnancy under section 18(2) of the Equality Act 2010. If her employer has treated her unfavourably because of her pregnancy, or pregnancy related sickness it will be discrimination.

Discrimination must also occur during what is known as the protected period. (See pregnancy and maternity discrimination in relation to the protected period and redundancy). This starts when a woman becomes pregnant and ends when her maternity leave ends.

Here, the claimant appears to have been dismissed for a reason related to her pregnancy, in that there were no concerns raised about her competence, conduct, or periods of absence, and her dismissal therefore appears to have been due to her pregnancy rather than a legitimate reason. Therefore, the dismissal of the claimant solely due to her pregnancy is likely to be a discriminatory act.

In addition her employer had been informed of her pregnancy and had made negative and discriminatory comments.

The employer’s refusal to extend the claimant’s probationary period to account for her absence due to pregnancy-related sickness is also related to her pregnancy, and is therefore also a discriminatory act.

If successful in a claim for discrimination the Tribunal will make an award for compensation which will be calculated by reference to net loss of earnings and future net loss of earnings and is uncapped. We have a page on calculating damages and compensation to understand what you may be awarded if successful.

Claim for unfair dismissal under section 98(4) of the Employment Rights Act 1996 (ERA 1996)

The claimant would be looking to bring a claim for unfair dismissal. Under the Employment Rights Act 1996, a dismissal can be either:

1. ordinary unfair dismissal – the tribunal will look at all the facts and circumstances in coming to a decision as to whether it was unfair; or
2. automatic unfair dismissal – the claimant will allege one of the automatically unfair reasons and, if this is proven, the tribunal does not need to consider anything else (the dismissal will be automatically unfair).

The claimant is claiming that she was unfairly dismissed. If she was dismissed due to her being pregnant or for a reason related to her pregnancy, it will be an automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc Regulations 1999 (MAPL Regulations).

If the dismissal is found to be unfair, the tribunal can make the following orders:

• an order for reinstatement – the employer could be asked to give the claimant their former job back and compensate them for any loss of earnings suffered between dismissal and reinstatement;
• an order for re-engagement – the employer could be asked to give the claimant a job comparable to their old job and compensate them for any loss of earnings suffered between dismissal and re-engagement; or
• an order for compensation.

It is unlikely that the claimant would want to ask for, and it is unlikely that they would be granted, an order for reinstatement or re-engagement.

The most likely order to be made is an order for compensation which usually includes:

• a ‘basic award’ – this award of compensation will vary depending on the claimant’s gross weekly pay, their length of continuous employment before dismissal and their age; and
• a ‘compensatory award’ – this award would compensate the claimant for financial losses suffered as a result of being unfairly dismissed and is usually capped at the maximum of £115,115, or 12 months’ gross pay (from April 2024).

For more details on unfair dismissal, including how to qualify for bringing a claim, please go to our webpages on unfair dismissal and dismissal during pregnancy and see our page on calculating damages and compensation to understand what you may be awarded if successful.

Detriment for pregnancy or maternity leave reasons

A woman has the right to not be subjected to a detriment for a prescribed reason set out in section 47C(2) of the ERA 1996 and regulation 19 of the MAPL Regulations. These include pregnancy, childbirth or maternity, ordinary maternity leave (OML), additional maternity leave (AML) or compulsory maternity leave, and time off to attend antenatal appointments. There is no qualifying period of service requirement to bring a claim under section 47C.

Failure to follow a fair disciplinary procedure

If an employer fails to follow a fair disciplinary procedure leading to the dismissal of an employee, it is likely to count against them meaning that the employee’s dismissal will be more likely to be unfair.

Failure to inform an employee of their right to be accompanied to a disciplinary meeting

While there is no legal obligation for an employer to inform an employee of their right to be accompanied to a disciplinary meeting, guidance in the Acas Code of Practice on Disciplinary and Grievance Procedures (which is commonly referred to as the Acas Code) states that the notification of a disciplinary meeting should advise the employee of their right to be accompanied at the meeting. If the employer has not made the claimant aware of this right, then a tribunal judge will take this into account when considering whether or not she was unfairly dismissed.

Failure to confirm in writing the reasons for the dismissal

In the claim form, the claimant points out that she did not receive a letter or any other written document confirming the reasons why she was dismissed. This is something that employees are entitled to receive under section 92 of the Employment Rights Act 1996. Pregnant employees are entitled to receive a written statement under section 92 without having requested it and regardless of whether or not they have been continuously employed for any period. As the claimant was not provided with the written reasons for her dismissal, under section 93 of the Employment Rights Act 1996, the employment tribunal may award her two weeks’ pay as additional compensation.

Failure to follow guidance in the Acas Code

An unreasonable failure by the employer to follow the guidance set out in the Acas Code may count against them if an employee should bring a tribunal claim, with the tribunal able to increase any award they make by up to 25 per cent. However, it is important to remember that the tribunal may also reduce any award they make by up to 25 per cent if they feel that an employee has acted unreasonably.

The core principles of the Code are:

• employers and employees should deal with issues promptly, including not unreasonably delaying meetings or decisions;
• employers should carry out any necessary investigations to establish the facts;
• employers should inform employees of the problem;
• employees should be given the opportunity to put their case before any decisions are made;
• employees should be able to be accompanied to disciplinary or grievance meetings; and
• employees should have the right of appeal.

Discrimination Questions

The Claimant asked questions of her employer and they failed to respond. The Tribunal can take this into account in discrimination claims. See our page here for more information. We also have a page on the questions to ask.

Additional Compensation

Failure to pay notice

The claimant was dismissed without notice at the meeting with her line manager. Under section 86 of the Employment Rights Act 1996, an employee with a period of continuous employment of less than two years is entitled to a statutory notice period of one week. The claimant was not paid any money in lieu of notice and so she may claim for a week’s pay.

Injury to feelings

The claimant may also be able to claim compensation for the emotional distress caused to her as a result of the dismissal by her employer. This is known as injury to feelings. An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. For this reason, it’s important for you to give evidence to the Tribunal about what happened to you, and how the discrimination affected you and made you feel. It would be beneficial in this situation to speak with friends and family to gather evidence of the impact the dismissal has had on you from an outside perspective.

See here for more information on how to calculate an estimate injury to feelings award.

Failure to allow the claimant to be accompanied to her disciplinary hearing

The claimant is entitled to two weeks’ pay, as her employer did not inform her of her right to be accompanied to her disciplinary hearing (contrary to the Acas Code on Disciplinary and Grievance Procedures), and when the claimant asked if she could be accompanied, her employer refused. This is contrary to the Employment Relations Act 1999.

Comments on the claim drafted above

Paragraph 1: For most tribunal claims, the first paragraph should set out the claimant’s date of commencement of employment, the employer’s name and the claimant’s job role. Only say that the claimant has never had any warnings if this is correct.

Paragraph 2: For both unfair dismissal and discrimination claims, it is important to establish that the employer knew the claimant was pregnant and from what date. The tribunal will need to know this date and the following events in order to consider whether the dismissal or alleged discriminatory act(s) that followed were because of the pregnancy.

Paragraphs 3 – 8: Set out in clear chronological order the timeline of events. If the claimant is alleging discrimination, it is particularly important to quote as precisely as possible all adverse remarks made by the employer regarding the claimant’s pregnancy, the context in which they were made and when these remarks were made.

Paragraphs 9 – 15: Set out the law for the tribunal which supports the unfair dismissal, wrongful dismissal and pregnancy discrimination claims.

A dismissal may be fair where an employee is dismissed for one of the five fair reasons such as misconduct, incapability or redundancy. As well as having a fair reason for dismissing the employee, the employer will still need to have handled the matter fairly and reasonably. If you are at all uncertain about what law to rely on, it is best just to state that the dismissal was unfair on ordinary unfair dismissal principles under s98(4) Employment Rights Act 1996.

Take note that if the claimant believes that the employer has not acted in accordance with the Acas Code, the claimant does not need to mention this in the claim form. If the claimant is not entirely sure about the applicability of the code, the claimant can still raise this at the tribunal hearing (when they are more sure) even if they do not mention it on their form.

If the claimant has been dismissed, a good rule of thumb is to always check that the employer has given the claimant the correct notice or payment in lieu because this is a contractual right to which the claimant is entitled. Dismissal without notice or pay in lieu is likely to give grounds for a ‘wrongful’ dismissal claim (i.e. a claim for notice pay) unless the claimant was dismissed for gross misconduct.

Think about whether any other claims might be relevant including claims for a failure to give written reasons for dismissal or a failure to allow the claimant to be accompanied to a disciplinary or grievance hearing by a work colleague or trade union representative.

Lastly, you may also need to consider setting out other areas of employment law which may be applicable on the facts and which are not specifically relevant to pregnancy discrimination.

The precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later so it is often best to simply state the name of the relevant act without referring to the exact sections of those Acts.

Where the claimant is claiming discrimination only, in many pregnancy discrimination cases, the discriminatory act will be the dismissal itself. Although there may have been earlier potentially discriminatory acts, such as adverse comments, they may only be supporting evidence. Whether or not an earlier incident should be cited as a legal claim or purely as supporting evidence depends on a number of factors including (i) whether it is within the time-limit; and (ii) whether it is significant enough to be a stand-alone incident of discrimination.

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.

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