Sickness and sick leave is a natural part of an employee and employer's life. Usually, it is a straightforward process. Though if an employee takes more days than others, naturally this may concern you.
However, the law acknowledges that complications that may cause incapacity for work may occur during pregnancy and provides special protection for employees in such circumstances.
Employers need to take particular care with how they deal with an employee's sickness during pregnancy and maternity leave. Protection from discrimination, detriment, and dismissal for taking sick leave during pregnancy has long been a part of the UK and European law.
We explore in this article what employment law says on pregnancy related sick leave, how you can stay compliant and what best practices you should follow.
What is pregnancy related sick leave?
It is the same as regular sick leave but is because of an illness or condition that relates to pregnancy.
Pregnant employees should have the same access to paid sick leave entitlement as any other employee. They should receive any contractual sick pay and any statutory sick pay (SSP.) They should follow normal sickness reporting procedures.
Reasons for sick leave during pregnancy
There could be several reasons an employee takes pregnancy sick leave.
These reasons can relate to issues experienced during the pregnancy, such as tiredness or sleep problems. Or could even be because of a pre-existing condition that the pregnancy has worsened.
You should always remember that whilst a pregnancy can be an exciting time for an employee, it can also be challenging for them and how you support them is vital for continued strong employee relations.
Pregnancy and sick leave where the absence does not relate to the pregnancy
If the reason for the sickness is unrelated to the employee's pregnancy, there should be no special pregnancy-related protection for the employer to consider, and the employer should deal with the employee in line with its normal procedures.
However, the distinction between absence that is unrelated to the employee's pregnancy and absence that is related to her pregnancy is not always clear cut. For example, stomach upsets may or may not be pregnancy related.
Where there is some doubt, the employer would be prudent to treat the sickness as pregnancy related. Even where the pregnancy and illness are not connected, the employer should contemplate any actions that it takes to ensure that they are fair and consistent and do not amount to pregnancy discrimination, detriment or unfair dismissal.
Does pregnancy related sickness trigger maternity leave?
If the employee is absent from work after the beginning of the fourth week before her expected week of childbirth (EWC), the employee's statutory maternity leave will be automatically triggered. The employer should ask about the reason for the employee's sickness sensitively.
You can ignore the odd day off because of pregnancy related sickness before maternity leave, but you have the right to start it if you wish. This can be because you have organised maternity cover, and they were not due to start maternity leave until nearer the birth.
Does pregnancy related sick leave count towards a sickness record?
Sick leave is unlike other forms of leave in that you can discipline or dismiss employees for taking too much of it. If you believe employees are taking more time off than they need or that they are not genuinely ill, you may consider a disciplinary procedure.
Except for illness related to pregnancy.
You must record any pregnancy-related sickness absence separately from other sick leave so that you don’t class a pregnancy-related sickness absence as a normal absence. This is so you do not use it as a disadvantage, e.g., for disciplinary action, dismissal, or redundancy.
In finding how much sickness absence they have had; employers may not consider:
- Pregnancy related illness during pregnancy.
- Time off for ante-natal appointments for pregnancy
- Maternity, Paternity, Adoption or Shared Parental leave
- Parental leave
- Time off for dependants
- Health and safety suspension
- Holiday or annual leave
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Sick leave pregnancy in UK legislation
Section 18 of the Equality Act 2010 provides that an employer discriminates against an employee if, during "the protected period", it treats her unfavourably because of her pregnancy or because of illness suffered by her because of her pregnancy.
The protected period begins when the pregnancy begins and ends when the additional maternity leave period ends or when the employee returns to work after her pregnancy if that is earlier.
There is no need for the employee to identify a male comparator to show they have treated her unfavourably, and employers cannot defend a claim by referring to a male comparator who they have treated in the same way.
For example, if an employer takes disciplinary action against an employee because of her high absence levels, where the absence was related to her pregnancy, the employee could claim pregnancy and maternity discrimination. The employer could not defend such a claim because it treated all employees with comparable sickness absence levels in the same way.
An employer's actions will not amount to discrimination if it does not know that the employee is pregnant. However, the employer will be thought to have the requisite knowledge if they know, believes, or suspect that the employee is pregnant, "whether this is by formal notification or through the grapevine".
Besides protection from discrimination, under reg.19 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), an employee is entitled not to be subjected to any detriment by her employer because she is pregnant.
Where an employer dismisses the employee (including by the non-renewal of a fixed-term contract) and you can connect the reason or principal reason for the dismissal with her pregnancy, the dismissal will be automatically unfair.
Expert support on leave and absences with Peninsula
Employers have a responsibility to fairly accommodate employees during an illness. Whether it’s paying statutory sick pay or requiring additional measures for an employee with long-term illnesses.
The law makes this more complicated with maternity because of discrimination legislation. Peninsula provides the support employers need to navigate employee sick leave entitlement properly.
Our HR services help you treat employees with respect and without fear of evoking employment tribunals.