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Ask taratill Your Own Question
taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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When can an employer legally be regarded as knowing an employee

Resolved Question:

When can an employer legally be regarded as knowing an employee is pregnant? Is proof needed before the position is protected?
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you. Did you let her go after you received a message saying she had a miscarriage?

Customer:

Hi. She textd saying she thinks she had a miscarriage as she had one before and it felt the same, i asked when she would be back to work she consistently replied i dont know, i had to let her go as i had no indication when or if shed return. She said she thought it was a miscarriage but she was confused as she didmy know she was pregnant :(

Customer:

She didnt know how it happened as she was using protection the docs also said it could be a liver infection so i have no idea what it was, she claims it was a miscarriage :(

taratill :

When did this happen?

Customer:

Just a few weeks ago ACAS been on to sort out i offered her her job back she declined but wants 5000! Compensation, have printed all text messages as its all i have no line or doctors note nothing.

Customer:

So just confused as she never a tually said she was pregnant or it was a miscarriage just she thought it was!

Customer:

Acas said its open for a futher 20 days before it closes and goes to next stage

taratill :

Hi unfortunately the law does not protect you very well in this situation. If you dismissed her as a result of her telling you she had a miscarriage then this would be deemed to be pregnancy related discrimination and would make the dismissal automatically unfair. I take your point that she did not prove she was pregnant but the law did not require her to do so at that stage. If she had continued absence then it would have been appropriate for you to seek consent to ask the doctor the reason for the absence. I am really sorry to be the bearer of bad news in this situation but it would be unfair for me to tell you something that was untrue.

taratill :

As a small employer I can see that this has put you in a difficult situation.

Customer:

Unbelievable! I am not a huge employer, i employed her as a nanny and she wouldn't give me a return date, i said take 26 weeks off if you want, just tell me when you'll be back, she replied 'dont know when ill be back' am i supposed to sit inevitably and let my business go down the tibes as i had no childcare :(

Customer:

Does she not have a duty of care to me to tell me roughly when she will be back?

Customer:

I also offered her the job back she declined??

taratill :

How long after she had sent the text did you terminate her employment?

Customer:

Not straight away it wasn't about why she was off i wanted a date of return she kept saying she didnt know so i textd saying i have to assume your not coming back then as i can wait inevitably, she didn't reply. Once i textd saying p45 on way as i jad no response she said 'sorry had to be this way' and send my p45 and ssp1 to show you terminated my employment during sick leave!!

taratill :

Yes but roughly how long after?

Customer:

I didn't. It was five days i waited for a return date after she said she thought it was a miscarriage.

Customer:

I employed her in another capa ity for a year and a half she had a miscarriafe during that time i gave her paid sick leave and paid all the time she had for doc apptments as well. I re employed her as a nanny after that.

taratill :

Ok I am really sorry but my initial advice does stand. Maternity discrimination is one of the hottest topics in employment law and employees do have protection from termination in these circumstances. I realise that this is not the answer you want but I do not make the law. I would suggest that you counter offer half the sum she has asked for and take it from there as on the basis of the facts you have presented she would succeed in a pregnancy discrimination employment tribunal claim.

taratill :

I know this is galling as you have been a good employer. It is always best to take advice in advance as you could have done something about asking for evidence and a return date.

Customer:

Ok thanks. :(

taratill :

No problem, If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

Done.x

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