If an employee whose probation period has been extended due to poor performance notifies the employer that they are pregnant, must it confirm them in the post?
An employee on probation has no absolute right to be confirmed in post just because they are pregnant if their work performance is not of a satisfactory standard and the reason for this is wholly unconnected to their pregnancy. In this scenario, 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 them. This might take the form of minutes of meetings with the employee where their performance was discussed on an ongoing basis, 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 the poor performance. For example, if the issue is the employee's attendance record, it could be that their sickness absence is predominantly pregnancy related. Regardless of their length of service, dismissing an employee for reasons related to their pregnancy will constitute pregnancy and maternity discrimination and unfair dismissal.
The reverse burden of proof in discrimination cases means that if, on the facts of the case, the tribunal could properly draw an inference that the unfavourable treatment of the employee 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 of their pregnancy, the employee would have a statutory right to receive written reasons for their dismissal.