Maternity/unfair dismissal

I would imagine that this is a cut and dried case but just wanted to check. My wife works part time as a barber in a small shop and is unusual in that, unlike other employees, she is actually "on the books" and gets her P60 (although no payslips etc.) each year. (Unfortunately the situation of the other employees is not at all unusual in the barber/hairdressing game but maybe we can skip discussion of that issue right now?!). She is expecting a baby in September and the shop owner's accountant has "helpfully" told her than before she goes off to have it he will sort out her P45. Only problem is that she never said that she was leaving! I presume that if they follow through with this then she would have a good case for unfair dismissal since she would effectively be sacked for being pregnant?

You're right. It's cut and dried (or should that be cut and blow-dried in this case).

An employer isn't obliged to pay an employee during maternity leave so it may be that in this instance, they're confusing temporary cessation with final cessation.

She should simply say that as she'll be back in 18 weeks, she doesn't require a P45. The response she gets should determine her next move.

You'd think, but i'd say they will claim that she intimated that she would leave through general conversation or that it was a simple misunderstanding. I'm sure if she said that she would be back after her maternity leave then she would probably still have a job.

Thanks for the comments. Actually the matter of what would happen for the period of maternity was not discussed at all as far as I know. I will check this out. Certainly nothing was put in writing by either party. I realise that the employer is not obliged to pay maternity pay and I'm not sure what her PRSI class is or what maternity benefits she might be entitled to yet. Basically this came out of the blue this morning so I am not prepared with all the relevant info. I have advised her not to accept the P45 if the accountant presents it to her in case this becomes tantamount to accepting termination and/or jeopardises any entitlement to maternity benefits. Unfortuantely stuff like this is pretty much par for the course in this game. She is doing relatively well even getting a P60 and being "on the books".

Clubman
Her claim for maternity benefit will ultimately depend on her PRSI record. She'll either qualify or not - there's nothing in between.

Naturally, the better option would be to resolve this informally but if push comes to shove, she should clarify her position (i.e. that she is not seeking termination of her employment) in writing to the employer - if only to place it on record. She should also refuse to accept the P45

After that, she should try to relax and put it behind her until after the pregnancy. She doesn't need this hassle at this time and it can all be resolved when the maternity leave is coming to an end.

Thanks. As I say I don't know offhand what her PRSI contribution class and history is and whether or not she will qualify for Maternity Benefit. Seemingly the accountant is going to ring her tomorrow so that gives us a bit of time to prepare. Hopefully this can be resolved amicably but I just wanted to be prepared in case it doesn't go that way.

Hi Clubman. This is not a nice situation for your wife to find herself in with all the stress that goes with the birth of a child. I never thought I would provide a link for you but see for information on the entitlements she has to maternity leave, she can still get payments even if she gets a P45 as long as it's close enough to the birth.
See for details of legislation on unfair dismissal. It is clearly stated that dismissal due to pregnancy or the need to breast feed a baby is against the law.

Thanks again for the feedback and info. I guess that this just caught us on the hop and I was looking for some reassurance. I'll post back with developments anon.

Clubman, I would strongly recommend you be aware of the following. A P45 (or to give it it's full title, a Certificate of Termination of Employment) is a very important document that has legal effect.

If your wife accepts this P45, she is accepting that her employment is terminated. Furthermore, by accepting her P45, this may have implications for subsequent claims of unfair dismissal. That is, an Employment Appeals Tribunal may view her acceptance of the P45 as accepting that her employment has been terminated. Of course, this becomes extremely important in the context of claims for unfair dismissal or constructive dismissal.

Furthermore, accepting a P45 will also have implications for her claim on maternity benefit. Not only must an employee have sufficient PRSI contributions, but they must be on leave from employment in order to claim. In other words, they have to actually have a job in order to claim - it isn't just sufficient to have enough PRSI contributions.

It's easy enough to check whether she has sufficient contributions, just contact Maternity Benefit Section at Dept. Social & Family Affairs and remember to have her PPPS Number to hand - they can tell you over the telephone if she has sufficient contributions.

With regard to her job however - it is obviously illegal for an employer to terminate the employment of someone on the basis that they are going to avail of maternity leave from work. But is this the case - are they terminating her employment because she's taking maternity leave, or is the employer under the impression she is leaving of her own volition? In addition - it was unclear from your initial message whether your wife is an actual employee of this barber shop - or whether she is technically self-employed and is working there.

I think you both need to sit down with someone who can go through your options and advise you on what you need to do next. (I don't mean seeking legal advice - just advice on your rights and entitlements). If you e-mail me privately - I'll see if I can put you in touch with one of my contacts.

Thanks CMCR - excellent feedback on this sort of thing as ever. It seems that things may have been sorted out today but I don't yet know the full story. Under no circumstances was she going to accept the P45 if it was offered to her. I'll post back with more info when I have it.

I forgot to post the update on this. As some of you know she had the baby a few weeks back. Thanks for all the best wishes from various people. In relation to the job it may have been a misunderstanding but the P45 issue went no further and she is currently on maternity leave and receiving maternity benefit at the minimum rate (c. €165 p.w.). At the moment the plans to return to work have not been discussed/finalised but so far the work situation has turned out OK after all and the initial worries about being let go etc. were unfounded. Thanks again for the feedback/advice on this query.