When the maternity cover is pregnant

23 September, 2011
Page 29 

When recruiting a temporary replacement to cover a period of maternity leave, most employers are careful to stipulate that the person engaged needs to be available for the duration of the contract. But where do you stand if a woman hired for this type of role turns out to be pregnant and knew that she wouldn't be able to complete the job at the outset? As she has clearly lied to you about her availability, can you cut your losses and sack her?

Unfortunately, an employer who reacts in this way is likely to get hauled before the tribunal. That is because considerable protection is given to pregnant women under the Equality Act 2010. It says that any dismissal of a woman on account of her pregnancy will be direct sex discrimination. Those recruited for fixed-term contracts (FTC) as most employees providing maternity leave cover are will also be protected.

There is no point trying to argue that the dismissal is due to her "inability to fulfil the contractual requirements of the role", rather than the pregnancy itself. This has already been tested before the European courts in Tele Danmark A/S v Handels-org 2001. Here, the employer claimed that:

1. a female employee had breached the requirement of "good faith" when she accepted a contract knowing she was pregnant; and

2. it would have treated any man unable to honour a contract in exactly the same way.

Needless to say, her dismissal was deemed to be unfair.

Where you have directly recruited an employee who turns out to be pregnant, it is fair to say that your hands are tied. You cannot dismiss her simply because she failed to disclose her condition and it does not suit your business needs. But you can avoid coming unstuck in the first place. If you hire temporary maternity cover via an agency, perhaps on a weekly or monthly basis, you can replace her if she later presents a "problem" as and when you wish, and without having to worry about a sex discrimination claim.

On 1 October 2011, the Agency Workers Regulations 2010 will come into force. From that date, when a pregnant temp completes a 12-week qualifying period, she will be entitled to paid time off for antenatal appointments but not maternity leave. It is the agency that must pay her for this. This can be avoided by booking temps for fewer than 12 weeks.





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