Can an employer dismiss a pregnant employee who, before getting pregnant, had a high level of days off and was being absence managed by HR? Esther Smith and Martin Brewer advise.

The question:

I have an employee who has a terrible record of single days off. I am therefore at the final stage of absence procedure and have furnished her with a statement of expectations including who to call and when. She is now pregnant and I realise that the days off will not change, but she will say they are maternity related. Can I still dismiss her if she does not call in as stated?

Legal advice:

Esther Smith, partner, Thomas Eggar

Yes you can, but of course the risk of a claim or challenge is significantly increased now that she is pregnant and has the ability to argue that the absence is pregnancy related. The fact that the absence may be pregnancy related in itself does not give her carte blanche to take time off work, but the law expects a higher degree of tolerance of people who are pregnant than those that are not, as unfair as this may seem sometimes!

Of course if the issues arising relate not necessarily to the level of absence but the failure to comply with the reporting procedures, it seems even harder for the employee to argue that this failure on their part would be pregnancy related. Therefore disciplinary action on this ground may be much safer, depending on the facts of the situation.

Also, if you had any evidence to suggest that the time she has taken off was not pregnancy related or indeed sickness related, then again any action you take is much less likely to result in a successful claim.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

If the problem is procedural, i.e. she is getting close to dismissal because she doesn’t meet your reporting needs, then the reason for the absence is irrelevant. So in that case yes, you can still move to dismiss.

However, if the problem is the fact of the absence then you do need to be very careful about sex discrimination if you rely on maternity-related absence. If in doubt seek a medical report to check the reason for any absence you want to rely on.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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