If an employer dismisses a pregnant employee for gross misconduct must it still pay them maternity pay?
Whether or not an employer must still pay an employee maternity pay if it dismisses them for gross misconduct depends on the timing of the dismissal. A pregnant employee will be entitled to be paid statutory maternity pay for 39 weeks provided that three conditions are met. The employee must have a minimum of 26 weeks' continuous service as at the end of the 15th week before the week the baby is due, which is known as the "qualifying week"; their average weekly earnings must be equal to or greater than the lower earnings limit for national insurance contributions in force at the time; and they must still be employed by the employer during the qualifying week, ie must not have been dismissed before the beginning of that week. A week for these purposes commences on a Sunday and ends on a Saturday.
If, therefore, the employee's employment has terminated before the Sunday that marks the beginning of the qualifying week, they will not be entitled to statutory maternity pay. In contrast, a dismissal that is effective at any time during or after the qualifying week will have no effect on their right to statutory maternity pay. This is the case irrespective of the reason for the dismissal. The relevant criterion is that the employee is still employed at some point during the qualifying week.
The above relates to statutory maternity pay. Where an employer grants enhanced maternity pay it is open to it to devise and implement its own rules regarding conditions for payment of the element of maternity pay that exceeds the amount of statutory maternity pay to which the employee is entitled. It would therefore be possible to have a policy that stated that employees dismissed for defined reasons, including gross misconduct, prior to or during maternity leave would forfeit the right to any enhanced maternity pay. Such a policy should, of course, be communicated very clearly at the outset.