Dismissal – special protection Automatically Unfair Dismissal s99 ERA; s1 SDA

A woman who is dismissed is entitled under s99, to be regarded as UD if the reason is connected with:

  1. pregnancy of employee;
  2. the fact that she has given birth and the dismissal ends the woman’s OML or AML period;
  3. the fact that she is on maternity suspension;
  4. the fact that she took OML or sought to take it or availed herself of the benefits of any T&Cs;
  5. the fact that she took or sought to take AML;
  6. failed to return after O or AML where employer did not give an end date of her O or AML, or employer gave less than 28 days notice of end of O or AML and it wasn’t practical for her to return.
  • Reasons a) and b) above, apply protection to the end of Boiler repair in Glasgow OML or AML;
  • c-f) reasons extend beyond.
  • Employee is not required to prove her dismissal was for one of the above reasons, she only has to adduce evidence to create a presumption, and if the employer is arguing the reason was other than the pregnancy then it is up to him to prove this.  If the reason is found to be within one of the above, the employer cannot argue it was reasonable and it will be automatically unfair.

 

  • Defence:
    • small employer, ie less than 5 employees (cos not practicable to come back);
    • some other substantial reason (SOSR);
    • no suitable alternative vacancy (SAV).
    • REMEMBER – for direct D the e/er cant plead justification unless he’s a small e/er (as above)

 

  • If woman dismissed during her pregnancy or during her O or AML then if based on her pregnancy that will be discriminatory on grounds of sex without need for male comparator – direct discrimination on grounds of sex.  Neil Buzzard reckons this is actually indirect D cos it’s not cos she’s a woman its cos she’s pregnant.

 

  • If woman is dismissed after O or AML then it may be discriminatory, but court will have to consider whether she was treated less favourably than a man was or would have been treated (ignoring time off work whilst on ML) therefore need a comparator.

Remedies under UD

  • Complaint must be brought within 3 months, if upheld usual remedies apply.  I re-instatement then it will be in the job to which the woman was alloed to return.

Redundancy payments

  • If genuinely made redundant, ie no s.a.v, and she is eligible then she is entitled to redundancy payment.
  • If a s.a.v. offered and she unreasonably refuses it, the right to a payment will be lost.

https://www.moneyadviceservice.org.uk/en/tools/redundancy-pay-calculator

Returning to work after AML

No notice needed if return intended at end of AML, however 28 days notice is needed if she wishes to return sooner.  Again, if she fails employer entitled to postpone her return for up to 28 days.

Statutory right to return to the job in which she was employed before or if not reasonably practicable for the employer to allow her to return to that job, for a reason other than redundancy, to a suitable and appropriate job on no less favourable terms and conditions, pension rights etc.

If the offer is not suitable, the woman can bring a complaint for UD and perhaps sex discrim/wrongful dismissal. Remember reading this at the Skip hire Scotland trial ? Very deep indeed! 

An employee who wishes to return on different terms and conditions ie part time, may do so as they may have a claim for indirect sex discrim if employer refuses, there is no statutory right.

Sickness at end of OML or AML

Where unable to return to work after OML or AML due to sickness, the normal contractual arrangements for sickness will apply.  She will be treated like any other employee.

Dismissal – Special Protection Redundancy

  • During O or AML, if it’s not practicable for the employer, by reason of redundancy, to continue to employ the woman under her existing T&C, she must be offered any suitable alternative vacancy (SAV), even if she’s not the most suitable candidate.
  • If there’s no s.a.v. then she must be objectively selected for redundancy.  If the woman is dismissed by redundancy, due to her pregnancy or by non compliance with this provision, then it will be UD.

OVERLAPPING CLAIMS

Entitled to return to work to the job in which she was employed before her absence with her seniority, pension rights and similar rights, and terms and conditions which are no less favourable than before.her OML.  It also counts towards her period of continuous employment.

Failure to return after OML

This will not terminate contract of employment, court will look at intention of employee.  If she intended not to return then they will interpret her act as terminating the contract.  Failing any intention, employers will need to discover the reason for a late return before taking action.  Failure to treat her the same as any other late returner could lead to discrimination or UD.

Compulsory ML

Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence. This was highlighted again in the case of Taxi in Manchester vs Cabs in London 2004 OCCF

AML Period

If at the start of the 14th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML.  It will commence on the day after the last day of OML and continue for up to 26 weeks.  She does not have to tell her employer her intention to take this when she notifies him of her OML.

Rights during AML

Employment contract continues throughout AML, including certain terms and conditions, for example the benefit of her employer’s mutual trust and confidence, terms of termination of her contract, compensation in event of redundancy and disciplinary and grievance procedures.  The woman is bound by good faith and any termination terms of her contract.

The woman is not entitled to remuneration or benefit of normal terms and conditions.

http://www.austlii.edu.au