If you’ve recently started a job, or you’re on a fixed term contract, you might think that this means you don’t have rights in the workplace, but this often not the case. This article covers your rights when you’re pregnant and on probation or a fixed term contract.
Your rights on probation
Being on probation in your workplace does not affect your maternity rights – you can have 52 weeks of maternity leave and return to your job (even if you have only been employed for a very short time).
If you meet the requirements, your employer has to pay you Statutory Maternity Pay (SMP). If you have not been with your employer long enough to get SMP you may qualify for Maternity Allowance (MA). You can read more about both types of maternity pay and benefits here.
All employees are protected from discrimination if they are dismissed or treated unfairly because of pregnancy or childbirth. This means that even though you are still on your probation period and have only been with your employer for a few months, your employer should not treat you unfairly due to your pregnancy.
How your employer should handle your probation
The scope and terms of your probation period are governed by your contract of employment. You should check your contract of employment to see what it says about your probationary period and whether your employer has the right to extend the probationary period. Your contract may also say something about what happens to the probationary period if you are absent for a part of it (i.e., on maternity leave).
If you are absent for a part of your probationary period on maternity leave, your employer should not regard you as unsatisfactory given your absence – this would also be a form of pregnancy and maternity discrimination. Instead, your employer should either:
- measure your performance on the time you can attend work and, if possible, confirm that you have passed your probationary period. You should check your contract to see if your employer needs to do anything to confirm you passed your probationary period (often your employer will need to confirm this in writing and if they do not, your probationary period will be extended); or
- consider exercising a contractual right to extend your probationary period or invite you to agree to an extension for a period equivalent to your absence. In other words, if you will take 52 weeks of maternity leave then your employer could seek to agree a 52 week extension of your probationary period (i.e. similar to pausing your probationary period). This will give you a fair chance to prove yourself and your employer the opportunity to make an informed assessment of your performance.
If your employer fails to confirm you in post or fails to offer an extension, depending on the circumstances you may be able to bring a discrimination claim. For instance, if you go on maternity leave and your employer notifies you that you have not passed your probation, without offering to extend your probation period, this could be discrimination because you have not been given an opportunity to prove yourself and work your full probation period.
If you are pregnant and you are dismissed or told that you can’t have maternity leave because you are on probation, contact our helpline for advice, even if your employer says they are not keeping you on because you’ve failed your probation. If you think you would have passed your probation but for your pregnancy, seek advice.
Your rights on a fixed term contract
Generally speaking, a temporary or fixed term contract has no special status in law. If you are an employee, even if you are on a fixed term contract you will have all the rights of a permanent employee. In fact, it is unlawful to treat fixed term employees less favourably than permanent workers.
You have all the maternity and health and safety rights of ordinary employees.
Being on a fixed term contract does not affect your maternity rights – you can have 52 weeks of maternity leave and return to your job. If you meet the requirements, your employer has to pay you Statutory Maternity Pay (SMP). You are entitled to paid time off for ante-natal appointments and your job should be safe for a pregnant woman to do. Being on a fixed term contract makes no difference to any of these rights.
If you are on a fixed term contract that is not renewed, it is still a dismissal under law, and has the potential to be an unfair dismissal, depending on the circumstances.
If your contract ends and is not renewed, you need to look at the reasons why. If there is no longer a need for you to do the work, for example because the project has ended, you are redundant. If you have two years’ continuous service with the employer you will be entitled to a redundancy payment.
If you are dismissed or made redundant while you are pregnant or on maternity leave, you have some special rights. If the job still exists, and your contract is not renewed because of your pregnancy or maternity leave, the dismissal will be discriminatory and automatically unfair. A woman who is dismissed while pregnant must be given written reasons for her dismissal.
It is automatically unfair to dismiss a woman because she is pregnant or intends to take maternity leave even if this means that she is unable to work for the majority of the contract, whether because of maternity leave or because of health and safety reasons.
If you are pregnant and you are dismissed or told that you can’t have maternity leave because you are on a fixed term contract, contact our helpline for advice.