MATERNITY RIGHTS - 18.05.2020

New hire awarded £23,000 for email sacking

An employee who was sacked by email after she took sickness absence in her first week’s employment has been awarded £23,000 by the tribunal. New hires can’t claim unfair dismissal, so why did she receive such a big award?

Unfair dismissal rights

As the law stands, new hires only accrue the right to claim unfair dismissal once they’ve completed two years’ continuous service. That means you can use a modified dismissal procedure when you wish to terminate the employment of a short-serving employee.

This can be helpful if it’s becoming obvious that things aren’t working out.

Sickness absence

However, the tribunal has ordered a law firm, Gowing Law Solicitors (G), to pay a former employee, Ms Wright (W), who had completed just one week’s service, £23,000 in compensation (see The next step ). How did this happen if short-serving employees don’t have general unfair dismissal rights?

Background facts

W had been hired by G as a full-time office administrator. Three days after starting her new job she took sickness absence due to having hyperemesis. This is severe nausea and vomiting caused by pregnancy.

At the end of her first week’s employment, W received an email telling her that she was dismissed with immediate effect because G felt she was unreliable due to her sickness absence.

Although W couldn’t claim unfair dismissal, her pregnancy-related sickness absence opened the door to a claim for automatically unfair dismissal and discrimination on the grounds of pregnancy.

Note. These rights both apply from day one of employment; they don’t require any minimum length of service.

Other problems

As G’s dismissal decision was linked to W’s pregnancy, it had to eventually concede that its actions were unlawful. It was left to the tribunal to determine compensation.

In addition to awarding W a significant sum it noted that in reaching its dismissal decision G had not:

  • conducted any investigation
  • informed W about the problem
  • given W an opportunity to discuss the problem at a meeting
  • offered W a right of appeal against its dismissal decision.

Tip 1. Even though you can use a modified procedure when dismissing short-serving employees, all of the steps above should still be followed. Where they are unreasonably ignored, the tribunal can uplift any compensation awarded by up to 20% (as it did in this case).

Tip 2. Never dismiss an employee for any type of pregnancy-related sickness absence - these claims can’t be defended at the tribunal as there is no defence available. If you are unsure whether sickness absence is pregnancy-related, seek the employee’s consent to contact their GP for a medical report (see The next step ).

For the tribunal’s ruling in this case, and a letter requesting consent to obtain medical report and a medical report consent form, visit http://tipsandadvice-personnel.co.uk/download (PS 22.11.07).

The employee’s sickness absence was due to a pregnancy-related condition. An employee must not be sacked for any reason linked to pregnancy. Where this happens she will have the right to claim automatically unfair dismissal and pregnancy-related discrimination. Both rights apply from day one of employment.

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