A woman who is dismissed is entitled under s99, to be regarded as UD if the reason is connected with:
- pregnancy of employee;
- the fact that she has given birth and the dismissal ends the woman’s OML or AML period;
- the fact that she is on maternity suspension;
- the fact that she took OML or sought to take it or availed herself of the benefits of any T&Cs;
- the fact that she took or sought to take AML;
- 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.
- 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.
- 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.