HR horror stories – Second of 4
Your pregnant employee’s poor performance
Issues with your pregnant employee’s performance have not been raised formally and she has passed her probationary period. You are about to call her to a meeting to dismiss her for poor performance (as she has no right to claim unfair dismissal) when she informs you she is pregnant. Can you go ahead and dismiss?
To dismiss her now would put you at a high risk of a claim of automatic unfair dismissal (for which an employee does not need two years’ service) and/or discrimination. Or would it? See what happened in a recent case below.
One of the biggest problems we see is that employees can bring a claim even if the claim is not a good one. Although in this position she would have the ability to bring a claim, it could be that you have a clear evidential trail that the dismissal for performances is unrelated to her pregnancy. This would be more of an uphill struggle if issues relating to her performance have not been raised formally. Without good evidence for poor performance, an inference could be drawn that the real reason for dismissal is your employee’s pregnancy.
If, however, your employee’s performance had been monitored throughout and issues brought to her attention from the outset with thorough documentation, you would have a far stronger basis on which to build a case for dismissal for poor performance that is unrelated to her pregnancy.
In a recent case, we were able to demonstrate with great clarity in email exchanges and file notes that the decision to dismiss a pregnant employee had been reached prior to the announcement of her pregnancy. This did not prevent her from bringing a claim, but her claim failed.
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