Continuous employment: dismissed before QW
HMRC Officers should not become involved in disputes concerning ‘unfair dismissal’ as this is covered by employment legislation. If a woman is dismissed before the QW, whether or not it could be regarded as ‘unfair dismissal’, she will not be entitled to SMP. She must claim MA instead.
If the employment tribunal subsequently find that the dismissal was unfair they will award the employee compensation which will include any lost SMP.
An employee’s dismissal may be regarded as ‘fair’ if no suitable alternative vacancy is available and their employment ends before the QW because:
- their pregnancy makes it impossible to do the job properly, or
- it would be against the law to do that particular job while pregnant.
The continuous employment rule is satisfied if, at the time of their dismissal:
- the woman was employed by the same employer for at least eight weeks
- the dismissal can be treated as ‘fair’
- but for the dismissal they would have been employed into the QW
- they would have completed 26 weeks’ continuous employment into the QW.