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Dismissal in pregnancy -- what are my rights?

(25 Posts)
Italophil Tue 06-Sep-11 17:32:08

Hello everyone, I was hoping you could help me get a better understanding of my rights in the following situation. The below description is a list of the circumstances and not supposed to imply any connection or cause.

- Employed with company for more than 4 years; 3 months notice period
- Announced pregnancy end of last week with intention to take maternity leave starting Feb 2012
- Informed of formal start of review process today verbally by boss (with him suggesting that informally I can either continue working for 3-4 months or agree on a compromise agreement; however, no concrete proposal was made)
- Boss left conversation very vague and open (I said only I would inform myself of my rights, and he said they would come back with a proposal)

What are my rights in this situation? Obviously a bit of a bummer as what they are implying is that I can either work until my maternity leave (or say around Christmas time) OR get my notice period paid. If I continued work, I guess I would get the 6 weeks 90 pct pay at least, as the cut-off is some time in November.

But I am wondering if there is anything else I am entitled to?
- Can the employer just tell me to leave and effectively only pay the notice period, or would I have more rights?
- Should I request anything in writing?

Incidentally, leaving aside the timing with respect to the announcement of my pregnancy, the company is not doing so well financially.

I have posted this also under Employment Advice, but thought maybe this section makes sense as well. Any advice is much appreciated. Many thanks in advance!

licoriceGreen Tue 06-Sep-11 17:42:22

My understanding is that if your role is being made redundant and you are the only person in the role or all the people in the role are then there is nothing you can do. If it's because your not performing they have to give you a verbal warning, then give you time to correct your behaviour then a letter and then time again and then they can let you go. Unless it's gross misconduct. I'd get some proper legal advise

spannermary Tue 06-Sep-11 17:43:05

Check out this site:

www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyandmaternityrights/DG_10026556

Amongst other things it says:

Discrimination and pregnancy
It is unlawful sex discrimination for employers to treat women less favourably because of their pregnancy or because they take maternity leave. For example, this includes:
trying to cut your hours without your permission
suddenly giving you poor staff reports
giving you unsuitable work
making you redundant because of your pregnancy (you might still be made redundant for other reasons)
treating days off sick due to pregnancy as a disciplinary issue
Your employer can't change your employment terms and conditions while you are pregnant without your agreement. If they do, they will be in breach of contract.

Hope that helps!

kat2504 Tue 06-Sep-11 17:43:37

Are you being sacked or made redundant? I think that makes a significant difference to your rights.

HotPinkGingham Tue 06-Sep-11 17:46:10

This sounds rather dodgy to me - there have to be clear grounds for dismissal in any circumstances, but the fact that you are pregnant should also offer you extra protections (and make you even more alert to dodgy dealings) as pregnancy discrimination is such an issue.

The start of a review should be just that, with a formal process to follow, but it sounds from that conversation like you are being dismissed and your boss at least has already made up his/her mind. The mention of a compromise agreement is also weird at this stage - are you being made redundant or is there an implication of another cause for dismissal (e.g. poor performance or some other issue they would want dealt with quickly and have decided to pay you off, hence the suggestion of a compromise agreement, which would probably include your fairly immediate exit)? Without knowing more it's hard to judge, but if the facts are everything was fine, then one week you announce your intention to take mat leave and the next you are being offered a compromise agreement with no further explanation, I would personally be very wary of that being the cause of your dismissal, especially if they are concerned about costs and covering your absence.

I am not an expert but have handled a number of redundancies and dismissals so know the drill quite well by now. I would suggest giving ACAS a ring - they are excellent on explaining your rights and can refer on if you need further advice (like to an employment lawyer - legal aid if you qualify)

HTH

Italophil Tue 06-Sep-11 17:48:33

Thanks a lot for your responses.

Just to clarify, what my boss said informally is that the dismissal is due to the company not performing well. So they are starting the formal review on performance now. This is the first time they mention anything about performance, and are actually anyway admitting that it is not the real reason.

I don't think it qualifies as a redundancy as I am not the only person in the role, and to my knowledge the other people are not affected.

So the question is how much they have to offer so that this can be seen as a fair compromise agreement, i.e., do they have to cover the full maternity leave my colleague had?

HotPinkGingham Tue 06-Sep-11 17:48:44

The address is www.acas.org.uk

licoriceGreen Tue 06-Sep-11 17:50:48

This sounds really dodgy, I'd follow hot pink's advise and contact acas.

Italophil Tue 06-Sep-11 17:57:05

Thank you. I will get in touch with ACAS.

Just to answer some of the questions:
- there have not been any performance issues (although the company which is tiny does not perform any proper reviews anyway)
- however, the company is not performing well, and -- there are 2 bosses -- the main boss associates me with the other boss and would probably like to see me leave

Either way I see it, the review process is a cover up for the fact that they want to terminate the employment. Obviously their starting the process a couple of days after my announcing the pregnancy is interesting to say the least.

HotPinkGingham Tue 06-Sep-11 18:03:02

Italophil I would really suggest getting some professional advice ASAP. Compromise agreements are a bit like 'settling out of court'. They are often used to make things clean and easy for an employer when there is a complex employment situation which would otherwise take a lot of time going through a formal process. You have to agree to it (they can't force you to take it) and they are voluntary on both sides - it's all about how well you negotiate, what they can afford, and how much/quickly they want to get you out. I have managed situations where a number of people in the same roles/level were offered compromise agreements - some were offered a few thousand and accepted, some pushed and got over £10,000. Some got paid redeployment consultancy because they asked for it, others didn't. You can (and usually will be) asked to sign a confidentiality agreement so no one knows what anyone else got and you can't talk about it. You usually also have to waive your right to any kind of future comeback for unfair dismissal etc. if you later think there was wrong doing of some kind.

As employers use these to avoid going through a formal HR process (another example is where they want to sack someone with terrible performance who's never been managed properly, they don't have the documentary evidence, and they don't want to have to go through months/years of performance reviews etc. before they can sack them without being exposed to an unfair dismissal claim) you need to know what you statutory rights are first, and make sure that whatever you get in the compromise is way better than what you'd get if you just followed the process. Presumably if it's just the start of a redundancy process they can't know you'll be redundant yet (that's the bit about this I really don't like) so in theory you could keep your job and get your mat leave. You want to make sure whatever you do you're getting the best out of it. And if you do feel like you might be being unfairly dismissed, get advice on that too. A potential tribunal case could make your compromise agreement (if it comes to that) more attractive...

HotPinkGingham Tue 06-Sep-11 18:08:18

Btw Italophil my post crossed with yours - I'm not suggesting you have terrible performance! The fact that they have no formal performance procedures would make it hard for them to use this as a factor in dismissal as they wouldn't have documentary evidence of anything. Even worse!

YBR Tue 06-Sep-11 18:16:46

It does smell a bit odd this. I suggest that as well as finding out your rights, you make and keep your own record of everything - esp informal conversations. It may pay dividends later.

FannyAnnPam Tue 06-Sep-11 18:38:37

Hi

My first recommendation is to get your Company handbook out and your contract. ACAS will probably ask about them and you would be best to familiarise yourself with the contents. If you've never seen one then ask for one.

Do you have targets, objectives, contractual sales targets?

If so then they should review against these and any short comings should be addressed either through a PIP (performance improvement plan) or similar - whatever your company calls them.

This is a process and the outcome should not be prejudged - talking about comp agreements at the start would probably count as prejudging.

Is there a formal process set out in the Company handbook?

If so they have to follow it. If they don't have one then they should at least follow ACAS guidelines as a minimum. If they don't follow company policy it will be automatically unfair dismissal.

If they talk about redundancy you should ask to see the criteria by which they are selecting candidates. You can also ask to see your scores. They may (and probably should) annonymise the other scores but you should be able to see the comparison.

You can look at the compromise agreement 'without prejudice' and this should not be taken as a sign of guilt or acceptance (you might want to put it in writing). By all means consider haggling over terms and tell them in no uncertain terms that any comp agreement would have to cover maternity pay.

Good luck and let us know how you get on.

pruney1977 Tue 06-Sep-11 19:19:43

Definitely speak to ACAS, have had to do so for my brother when he was facing unfair dismissal, they're a great help. Good luck x

Northernlurkerr Tue 06-Sep-11 19:34:46

So - you announce you're pregnant (congratulations). Nobody else is being reviewed or made redundant and you are not aware of any performance issue but your are told you will be undergoing review and this will lead to your dismissal? Looks like they don't want to pay you maternity pay. Bastards.

shock

Get some professional advice tomorrow and take them to the cleaners! I think there is a very good chance they are breaking the law. What sot of company is it?

KateeTheBump Wed 07-Sep-11 09:31:48

How do things work with your dates? My contract currently finishes about 3 weeks after my due date, but because I satisfy the continuous employment rule and was in employment in the 15th week before my due date my employer has to still pay me SMP.

Sounds like they are being devious and dastardly in your case, so good luck in sticking up for yourself!

Italophil Wed 07-Sep-11 10:20:16

Thanks everyone, this is really helpful. I will try to answer all of the questions. But the key message I got from everyone is to speak to lawyer/ACAS asap, which is underway. I will also review our handbook.

- Dismissal vs redundancy: In my view, this is a dismissal. Although they may lay off other people as well due to the performance of the company, there is no such thing as a redundancy process here.

- Performance: There are no formal targets or objectives here, no performance review other than the comments at the year-end bonus discussion

- Dates: In order to get SMP, I would have to work until end of November, which would probably work out anyway. However, there is a voluntary mat payment of 15 weeks (and I think my colleague even got 24 weeks, so that should apply to me as well I guess) which I would not be getting then

HotPinkGingham Wed 07-Sep-11 11:27:03

I really can't see any grounds for you being dismissed here.

If the company is not doing well and needs to reduce its staff to save money, that would lead to a type of redundancy, having to get rid of certain kinds of jobs or numbers of people. There would be a business case put together as to which ones are no longer needed, or they would set a target for reductions across the board (i.e. 15% of all workforces, or something). In either case there needs to be a fair and transparent process. Performance is sometimes taken into consideration as an additional factor in deciding who gets made redundant (if it's a choice between two the person with the unblemished record might get to stay over the person on their second written warning), but in your case there is no documentation so I can't see how they can make any sort of objective claim one way or the other (and annoyingly, neither can you - although you will have the argument that no one ever raised an issue with your performance in the past, and if you've been getting bonuses etc. it would suggest good performance).

In terms of compromise agreements/pay off, if they offer you one at the very minimum I would be looking for:

- Your full paid notice.
- The enhanced maternity benefit you would have got had you stayed working for them, and if you won't get SMP because of the timing, include that too.
- An additional amount to compensate for the manner of your dismissal and the fact that you won't have a job to return to and will need time to job hunt after mat leave (I would go for another stretch at least equal to your notice period)
- An agreement that you can go on immediate gardening leave, if this is what you would like to do. If your notice is being paid it should come to the same.

Your lawyer would be able to advise you best on this though. I think the main point is, they can't just dismiss you, there have to be grounds and they have to follow the process and if they don't, you can sue them and would most probably win. Tribunals are generally horrible for both parties though - hence many people go for the compromise agreement. If you do though, make it a big payout, one that can keep you going for a while.

figgygal Wed 07-Sep-11 13:01:54

I work in HR and am utterly appalled that companies still think they can carry on like this (makes me realise how risk averse we are in my company).

If they are looking to dismiss you because of the businesses performance and that there is a reduction in work for you then they should be paying you redundancy if it is a case of they have decided that personally you are not performing they should take you through a capability procedure outlining where you are falling short of expectations and work with you to fill that gap. It sounds like they are panicking because of your pregnancy confusing all boundaries between the processes and trying for a redundancy without paying you your package.

Again get advice from Acas, ask your employers in writing for their grounds/justification and dont sign any compromise agreement as it could sign your later rights away. Good luck and let us know how you get on.

Catsycat Wed 07-Sep-11 13:13:15

Nothing new to say really, but wanted to say good luck.

On the face of it this does not seem to comply with guidelines for redundancy programmes (though if the company is very small I think there are different rules), and seems discriminatory and extremely dodgy to me. I hope ACAS can help you make sense of whatever your employer are up to.

If it comes down to it, I did temp for a short while at an employment tribunal. While it isn't a fun experience, the staff at the tribunal were very nice, and in my limited experience people were treated kindly and compassionately. Hopefully it can be sorted out without recourse to that, anyway.

If your job cannot be saved, then I really hope you get a huge payout. I really can't believe the cheek of some employers shock.

eurochick Wed 07-Sep-11 13:51:02

You really need a lawyer. I am one and although I don't practice employment law I can recommend someone who does.

Paying for some advice at this stage will be worthwhile.

Italophil Wed 07-Sep-11 17:13:00

Thanks for all the advice, really appreciate it. I have spoken to a lawyer and we will wait for the proposal from the company now.

HotPinkGingham Wed 07-Sep-11 17:17:26

Good luck Italophil - come back here and let us know what happens, won't you?

CeeYouNextTuesday Thu 08-Sep-11 00:23:52

I was dismissed for being pregnant with DS(15.) I went to the Citizens Advice Bureau. They were fabulous! Really supportive and helpful. They did all the paperwork and legal stuff free of charge.

catgirl2 Thu 08-Sep-11 10:39:24

You may find some useful advice / support here:

http://www.maternityaction.org.uk/index.html

Think there is an advice line as well

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