Genevieve Touzin gets legal guidance this week from Martin Brewer, a Partner with the employment team of Mills & Reeve, and Sarah Bird, employment law expert at Browne Jacobson, on pregnancy rights for those on fixed-term contracts.
I have just recruited a new member of staff on a fixed term contract of three months. She joined us on the 18th of April and has advised me today that she is pregnant (could be up to three months in). What are my rights as an employer and her rights as an employee in this situation?
Responses are much appreciated.
Martin Brewer, is a Partner with the employment team of Mills & Reeve
Genevieve, the employee has all of the rights that any employee has including, crucially the right not to be discriminated against on the ground of her pregnancy. It is irrelevant that she is on a fixed term contract.
Generally an employee needs one year’s service to be able to claim unfair dismissal (there are some exceptions to this) but if she were dismissed she would no doubt argue that such a dismissal was because she is pregnant which would, of course be sex discrimination.
Importantly you must be aware that non-renewal of a fixed term contract is a dismissal in law. If you would have renewed the contract after the initial three month term but don’t do so because of the employees pregnancy, that will be a dismissal and will amount to unlawful sex discrimination.
Martin can be contacted at: [email protected]
Sarah Bird, employment law expert, Browne Jacobson
All female employees, regardless of their length of service with their employer, are entitled to 26 weeks ordinary maternity leave. The entitlement to payment during that leave is dependent on the employee having sufficient continuous service.
Statutory Maternity Pay (“SMP”) is only payable to employees who have been continuously employed for 26 weeks or more by the end of the 15th week before the Expected Week of Childbirth (“EWC”). You will therefore need to check with the employee when her EWC is to decide exactly what she is entitled to. However looking at the facts you have given it looks as if she will not qualify for SMP because she will not have accrued sufficient continuous service.
It is important that you are aware of why the company employed her on a fixed-term contract in the first place, which should have been discussed with the employee at an earlier stage. For instance, she may be working on a particular project that will be complete at the end of the three-month period.
Employers must decide in good time whether fixed term contracts are to be renewed once the contracted period of employment has come to an end. Therefore if the company decides not to renew her contract and there lacks clarity of why a fixed-term contract was used, this could enable her to argue that dismissal on non-renewal of the contract is unfair and amounts to sex discrimination.
The expiry of a fixed-term contract without renewal will be treated as an unfair dismissal if there is no legitimate reason for it or if the correct procedure is not followed. If the employee can show that her dismissal is connected to her pregnancy she will be able to claim automatic unfair dismissal, for which she does not need the usual 12 months’ service. She could also argue that you haven’t renewed the fixed-term contract because of her future unavailability as a result of impending maternity leave, which would amount to unlawful sex discrimination.
In any case, you will need to act reasonably in making the decision not to renew the fixed-term contract and follow a proper procedure. The statutory dismissal procedure will apply and need to be followed here.
Sarah can be contacted at: [email protected]
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