Dismissal for pregnancy-related sickness absence 





There is an absolute ban on treating a woman unfavourably because of her pregnancy-related sickness (section 18(2)(b). EA 10). This is why, for example, it is against the law ever to include pregnancy-related sickness absence when assessing for redundancy, or when calculating a woman’s sickness absence record for any other reason such as eligibility for bonus payments or attendance-related dismissals. 




Some conditions related to pregnancy and childbirth, such as post-natal depression, may amount to a disability under the EA 10 (see Chapter 7). 





It is against the law to subject any employee to a detriment (such as a formal attendance warning) for any reason related to pregnancy, childbirth or maternity, for example, penalising a woman for attending an ante-natal appointment (section 47(C)(2)(a), Employment Rights Act 1996 (ERA 96), regulation 19, Maternity and Parental Leave Regulations 1999 (MPLR 99)). 


It is automatically unfair to dismiss a woman for a reason relating to her pregnancy, childbirth or maternity, or relating to her taking or refusing to take maternity leave (section 99, ERA 99). No service is needed. The right is the same no matter how few hours the woman works. 


The dismissal will still be automatically unfair even if the decision to dismiss is taken after the woman has returned to work, as long as the main reason for dismissal relates to her pregnancy or to her exercising or trying to exercise maternity rights. 


For a dismissal linked to “childbirth” to be automatically unfair, it must end the maternity leave (regulation 20, MPLR 99). 



For a dismissal to be due to pregnancy, whoever takes the decision to dismiss must know that the woman is pregnant. If the manager finds out later about the pregnancy, there is not normally any legal obligation to revisit the decision to dismiss, for example, in an appeal (Really Easy Car Credit Limited v Thompson [2018] UKEAT/1097/17). 


There is similar protection against detriment and automatically unfair dismissal for asserting other statutory “time off” rights relating to parenthood (see Chapter 9).


There is also protection against sex, pregnancy and maternity discrimination (see Chapter 7).