The simple answer is yes, you can. Whilst an employee receives additional protection whilst on maternity leave such additional protection should not be seen as a ‘blanket cover’. An employer is entitled to continue investigating potential disciplinary matters which come to their attention.
What should the employer be aware of if they pursue a disciplinary?
The employer should ensure it avoids discriminating against the employee. The risk to the employer is that the employee will claim such disciplinary action is a reason related to their pregnancy, childbirth or absence on maternity leave. The employer should ensure they follow their procedure carefully and that they conduct a thorough investigation prior to any subsequent disciplinary action. Furthermore, if the employee is on Ordinary Maternity Leave the employer should avoid contacting her for at least the two-week compulsory maternity leave.
What procedure should an employer follow?
The employee must not be disadvantaged because of her absence from the workplace, meaning the employer’s normal disciplinary procedure may need to be adapted. It is suggested that the following procedure be followed:-
- Communicate – it may be that the employer knows of the employee’s preferred method of communication as part of the arrangements for her maternity leave. If so, these should be respected. The employer should also ensure that they provide the employee with plenty of notice of proposed meetings and give the employee plenty of time to respond to requests for information.
- Timing – consider the appropriateness of contacting an employee, especially when she is on Ordinary Maternity Leave.
- Meetings/hearings – given that the employee is on maternity leave, the employer cannot compel her to attend any meetings. If she does not want to attend, the employer could propose the option of conducting the meeting off-site or at the employee’s home, if appropriate. In addition, should the employee attend the meeting, the employer may wish to be more flexible on who can attend as her companion. It may also be possible to hold the meeting on one of the employee’s ‘keep in touch’ days.
What happens if the employee is dismissed during maternity leave?
The employee will remain entitled to their 39 weeks’ statutory maternity pay but as stated above, care should be taken should an employer dismiss an employee during their maternity leave as an employee may state that such a dismissal was related to their pregnancy, childcare or absence due to maternity leave.
If you require any specialist Employment Law advice, please do not hesitate to contact me on 01522 440512, ContactUs@lincslaw.com or go to our website www.lincslaw.co.uk to learn more.
Specialist Employment Law Solicitor