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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have an employee who I think is taken the, I have already

Customer Question

I have an employee who I think is taken the Michael, I have already given a verbal and a written waring. She has just had a week off as holiday and called in sick on her first day back. She was seen the night before about 9pm leaving her property, she then called in sick again for the second day. She is pregnant and is due to go on maternity leave middle of August. But I don't want her back after is there a legal way of sacking her with been as they say discriminating.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Remus2004 replied 10 months ago.

How long has she worked there?

Customer: replied 10 months ago.
About 18 months
Customer: replied 10 months ago.
About 18months
Expert:  Ben Jones replied 10 months ago.

Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law.

What are the actual reasons for sickness, are they pregnancy-related?

Customer: replied 10 months ago.
Hi Ben,
I don't think so, but I only got a text on Monday morning saying I've been in bed the past 24 hours with sickness both of us have been ill since getting back on Friday. Thanks Steve
Expert:  Ben Jones replied 10 months ago.

Thank you. The starting point is that as she has less than 2 years’ service, she will not be protected against unfair dismissal. So you can dismiss her for more or less any reason, however you must ensure that they are not discriminatory in nature. So this is where the potential issue arises. Pregnancy is a protected characteristic so if you dismiss because of that, it will amount to discrimination. It certainly does not mean that you cannot dismiss a pregnant employee but you must be satisfied that the reasons for dismissal are not related to her pregnancy, including because of pregnancy-related absence.

So if she is performing poorly or has been guilty of some form of misconduct and these are not in any way elated to her pregnancy, you could potentially use them to dismiss her. However, it would be easy for her to try and claim that you did this just because she was pregnant and these were sham reasons which you just used in the circumstances. Whatever you do, there will be risks and it is unfortunate but pregnant employees do get a lot of protection.

In the first instance you should be clear on the reasons which you wish to use to potentially dismiss and ensure that they have no relevance on the fact she is pregnant – so do not include anything which is linked to her absences on pregnancy-related grounds or performance which may be affected by the fact she is pregnant. If you are confident you have sufficient grounds to do so and that they cannot be linked to her pregnancy you can potentially dismiss her, but just be aware that it won’t stop her from trying to argue your decision was because of her pregnancy. That is why you need to ensure you have good evidence to back up your decision.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to take to dismiss her, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 10 months ago.

Thank you. If you were confident you had other grounds on which to base a dismissal then you can instigate a meeting with her to discuss these. Try and follow a formal procedure if you can. This would involve writing to the employee with the allegations, inviting her to attend a formal disciplinary meeting and allowing her to be accompanied by a trade union re or colleague. At the meeting give her the chance to defend herself but in the end you could proceed with the dismissal and issue her with her contractual notice period and pay her for any accrued holidays. Then give her the reasons for the dismissal in writing. Do not bring up the pregnancy or anything related to it

Customer: replied 10 months ago.
Thankyou very much for your help Ben.
Expert:  Ben Jones replied 10 months ago.

You are welcome, all the best

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