The perils of dismissing a pregnant employee

A recent employment tribunal ruling is a useful reminder of the special protection afforded to pregnant employees facing redundancy, as Homa Wilson reports

In Savvides v The Trustees of the British Museum, Niki Savvides was employed by the British Museum to train Iraqi archaeologists on excavation and site management. The project was expected to last for five years. Although Ms Savvides was initially employed on a one-year, fixed-term contract, it was expected that her role would continue for the duration of the project and that her contract would be extended. 

Towards the end of her one-year contract, she informed the museum she was pregnant. Initially, there were discussions about securing maternity cover. However, shortly after, she was informed that the emphasis of the job was being changed. A new role was to be created, and she would be made redundant. 

Ms Savvides contended that the new role was so similar to her role that she should have been offered it. The museum refused, and informed her that she could apply for the role when it was advertised externally. 

She applied for the new role but was unable to attend the interview due to pregnancy-related sickness. As a result, the museum withdrew her application.

Ms Savvides presented claims for automatic unfair dismissal and discrimination on the grounds of pregnancy. 

A tribunal found in favour of Ms Savvides. While it accepted that the change to the role meant there was a genuine redundancy situation, it held that Ms Savvides was well-suited to the role and therefore should have been offered the job. As such, it found that her dismissal was automatically unfair. 

The tribunal also held that the museum had discriminated against her by withdrawing Ms Savvides’ application for the new role because she was unable to attend the interview because of her pregnancy. Ms Savvides was awarded an undisclosed financial settlement.

Regulation 10

Employers frequently misunderstand or misapply the law when dealing with pregnancy-related issues and often have a misplaced sense of confidence that they can lawfully dismiss pregnant employees, or those on maternity leave, as long as they can identify a genuine redundancy situation. 

Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) affords significant protection to employees who are pregnant or on maternity leave. 

Regulations 10 states: “This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her…Where there is a suitable available vacancy, the employee is entitled to be offered… alternative employment…”

This means that where an employee is selected for redundancy while on maternity leave, the employer must offer her a suitable alternative role, if it has one. 

Under Regulation 10, the employer is obliged to offer a suitable alternative role to the employee on maternity leave in preference to other employees who may also be at risk – even though another employee may be better suited to the role. 

The Museum tried to argue that Regulation 10 was only triggered where the ‘impracticality’ arose during maternity leave – not as in this case, where the impracticality first arose before leave had commenced.

On these facts, the tribunal held that Regulation 10 applied, as it continued to ‘not be practical’ to employ Ms Savvides in her previous role due to it being redundant.

Tips for employers

Where the reason or principal reason for an employee's dismissal is redundancy and the provisions as to suitable alternative employment, set out in Regulation 10, have not been complied with, the employee's dismissal will be automatically unfair. This means the employee will not need two years’ service to recover unfair dismissal losses. She will have a claim for automatic unfair dismissal, which does not require a minimum length of service. 

Also, section 18 of the Equality Act 2010 makes it unlawful for an employer to treat an employee unfavourably because of her pregnancy or maternity or because of illness suffered as a result of her pregnancy. Unlike other discrimination claims, for a section 18 claim, the employee is not required to identify a comparator. This makes it easier to prove the case at tribunal.

If successful, on top of actual loss of earnings, the employee would be entitled to compensation for injury to feelings – such damages are uncapped.

Employers who do not offer an alternative role must be confident they can show why the new role is not suitable for the employee, and should ensure any unfavourable decisions they make about offering alternative roles are not due to the employee being on maternity leave.

Homa Wilson is a partner at Hodge Jones & Allen