Your rights when pregnant on probation or a fixed-term contract

If you’ve recently started a job, you’re on your probationary period 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 is 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 take up to 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 eligibility and notification requirements, your employer has to pay you Statutory Maternity Pay (SMP). If you have not been employed by your employer long enough to be paid SMP you may qualify for Maternity Allowance (MA). You can read more about both types of maternity pay and benefits here.

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 probation makes no difference to any of these rights.

All employees are protected from discrimination from the application stage of their employment and this protection continues from day one throughout the employment relationship. 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 dismiss you or treat you unfavourably or detrimentally because you are pregnant, because of any pregnancy related sickness or because you will be taking maternity leave. Such unfavourable treatment would be unlawful pregnancy and maternity discrimination.

It is possible to be dismissed lawfully from your job if you are pregnant but if you’re dismissed because you are pregnant at any stage of your employment this will be automatic unfair dismissal and pregnancy discrimination. To bring a successful claim, you would need some evidence that your employer’s decision was linked to your pregnancy which can sometimes be difficult to prove. If you are dismissed during your probationary period but your employer does not know you are pregnant, then this will not be pregnancy discrimination. This is one of the reasons to tell your employer about your pregnancy earlier than the 15th week before EWC (The week you need to notify your employer for the purposes of SMP). We have an advice page on telling your employer you are pregnant.

How your employer should handle your probationary period

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, you should not fail your probation for any reason connected to pregnancy or maternity related absence – this would also be a form of pregnancy and maternity discrimination. Instead, your employer should either:

• measure your performance based 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 may 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 give 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.

If you are dismissed, treated unfavourably or suffer detrimental treatment, you need to act fast, as the time limits in the Employment Tribunal are very short – 3 months minus one day from the date of dismissal or the act complained of in the case of discrimination. It is best to take advice and talk to Acas as soon as possible if you think you may want to bring a claim.

Your rights on a fixed term contract

If you are an employee on a fixed-term contract with your employer, you are generally entitled to rights that are no less favourable than comparable permanent employees. These rights come from the Fixed Term Employees Regulations.

If you meet the eligibility requirements, your employer has to pay you Statutory Maternity Pay (SMP) even after the expiry of your fixed-term contract. 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.

Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

Employers should offer fixed-term employees the same pay and conditions as comparable permanent staff and the same or equivalent benefits package. In fact, it is unlawful to treat fixed-term employees less favourably than permanent workers, unless the employer can show there is a good business reason for doing so. You should also not be subjected to a detriment because you are on a fixed-term contract. For a fixed term employee to be protected by the Regulations, the contract is one which, even if it contains a notice provision to end the contract early, will expire at the end of the term without the need for notice. These contracts are often used for specific project work, where there is limited funding for a specified period or where the employee is needed to cover another employee e.g. someone as a maternity cover or cover for long term sick leave.

Being on a fixed-term contract does not affect your maternity rights while you are employed. As a fixed-term employee, you have all the maternity and health and safety rights of permanent employees. You should also benefit from any enhanced family leave benefits that are offered to comparable permanent employees, unless your employer can objectively justify not offering them to you e.g. an example where it may be justified is with enhanced maternity pay which has a a requirement to return to work after maternity leave for a certain period of time otherwise you must repay the enhanced element of the maternity pay (above SMP). If this would not be possible due to the expiry of your fixed-term contract, your employer may refuse to pay this.

If you are employed for a short term then you should be offered pro- rata benefits where possible for this term.

You have the right not to be subjected to any detriment by any act or failure to act by your employer because of your status as a fixed-term employee.

Finally, if you have been employed on fixed-term contracts for 4 or more years you will automatically become a permanent employee, unless the employer can show there is a good business reason not to do so.

Expiry of Fixed-term contracts and dismissals

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 or discrimination, 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, your role may be redundant. If you have two years’ continuous service with your employer you will be entitled to a statutory redundancy payment.

If you were employed under a fixed term contract to cover an absent employee and you were informed your employment would terminate when the employee returned to work and indeed are dismissed when they return to work, the dismissal will not be redundancy. This is because it would not meet the statutory definition of redundancy because both before and after the dismissal there was a requirement for one employee to carry out the particular work. This would be a potentially fair dismissal for “some other substantial reason”.

If you are dismissed or made redundant while you are pregnant or on maternity leave or following return from 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.

However, if your Fixed-Term Contract is due to expire during your maternity leave and there is no alternative role available then your maternity leave will come to an end when your contract ends. This means that if your contract ends while on maternity leave, your employer does not have a positive legal duty to automatically hold the job open for you, or extend the contract to ensure that you can return to the job once you have finished maternity leave.

However, your employer still has obligations towards you in respect of protection during redundancy, unfair dismissal and discrimination law on the expiry of your fixed-term contract.

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.

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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