Probation: Pregnant Employees and Poor Performance

An employee has no absolute right to be confirmed in post just because she is pregnant if her work performance is not of a satisfactory standard and the reason for this is wholly unconnected to her pregnancy.

If the employer wished to dismiss the employee due to ongoing poor work performance, it would need to ensure that it had the evidence available to demonstrate to an employment tribunal that the employee’s pregnancy played no part in the decision to dismiss. This might, for example, take the form of:

  • Minutes of meetings with the employee where her performance was discussed on an ongoing basis; and/or
  • Details of reasonable targets set but not achieved and evidence of mistakes made.

The employer would also need to be confident that the employee’s pregnancy was not one of the causes of her poor performance. For example, if the issue is her attendance record, it could be that her sickness absence is predominantly pregnancy related. Regardless of her length of service, dismissing an employee for reasons related to her pregnancy will constitute pregnancy and maternity discrimination and unfair dismissal.

If the employee establishes a prima facie case of unfavourable treatment from which a tribunal could properly draw an inference that the treatment was because of pregnancy, the burden of proof shifts to the employer to prove that there was some other non-discriminatory ground for the treatment. If the employer fails to show there was no discrimination, the tribunal must uphold the employee’s complaint. This is why it is so important for the employer to have evidence to support its case.

Because she is pregnant, the employee would have a statutory right to receive written reasons for her dismissal.

You can find out more about probation periods here.


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