Sickness before, during and after maternity leave

New law in force

The Equality Act came into force on 1 October 10. Some of the information on this page may be out of date.

Contents

Legal requirements

During pregnancy, an employee absent due to a pregnancy-related sickness is entitled to receive contractual sick pay and Statutory Sick Pay in the same way as any other employee. She will be entitled to receive Statutory Sick Pay provided she satisfies the eligibility criteria. You will find more information on Statutory Sick Pay, including the eligibility criteria on the Department for Work and Pensions website.

An employee absent due to a pregnancy-related sickness is not entitled to be treated more favourably in relation to sick pay. If you operate a contractual sick pay policy, the rules of the policy should apply to her in the same way as they apply to others.

Pregnancy–related sickness should be recorded separately from other kinds of illness. You should not count pregnancy-related sickness towards an employee’s total sickness record. You should not use pregnancy-related sickness absence as a reason for disciplinary action or when selecting for redundancy or for any other detrimental purpose.

If a pregnant woman’s working conditions are affecting her health and safety, you should carry out a risk assessment and take any appropriate action. Failure to take appropriate action could result in a woman having to take sick leave if her working conditions are affecting her health and safety. Failure to carry out a risk assessment may constitute sex discrimination. For more information about specific risk assessments, see the Health and safety during pregnancy and after the birth section in this toolkit.

An employee’s entitlement to Statutory Maternity Pay may be affected if she receives only Statutory Sick Pay during the calculation period for Statutory Maternity Pay.

An employer must not discriminate against a woman, subject her to a detriment or dismiss her for a reason relating to her pregnancy. This includes pregnancy-related sickness absence. In these circumstances, a woman does not need to compare her treatment with that of a man to establish sex discrimination. She has protected status.

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Pregnancy-related sickness in the four weeks before the expected week of childbirth (EWC)

If an employee is absent due to a pregnancy-related sickness at any time during the four weeks up to the EWC, her maternity leave will start on the day after the first day of absence, unless you agree otherwise. In order to preserve her rights, the employee must, as soon as is reasonably practicable, give you notice (in writing if requested) that she is absent from work because of pregnancy and give the date on which absence for that reason began.

If the employee is eligible to receive Statutory Maternity Pay, it will start from the day following the first day that she is absent for a pregnancy-related sickness.

Odd days of pregnancy-related sickness may be disregarded at your discretion.

Time off work for antenatal care is not to be counted as absence due to pregnancy-related sickness.

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Sickness during maternity leave

An employee is not entitled to Statutory Sick Pay during the 39 week maternity pay period regardless of whether she has returned to work in that period. She may be eligible for Statutory Sick Pay after the maternity pay period if she satisfies the relevant eligibility criteria.

Unless your contractual sick pay scheme provides otherwise, an employee will not be entitled to contractual sick pay while she is on maternity leave. However, an employee may give 8 weeks notice to end her maternity leave early in order to benefit from her employer’s contractual sick pay scheme. This would mean that the employee is effectively “back at work” even though she would be on sick leave. She cannot opt to go back on to maternity leave once she is well again.

A woman on maternity leave has the same protected status as a woman who is pregnant. She must not be discriminated against, made to suffer a detriment or dismissed for a reason relating to her pregnancy or maternity leave.

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Sickness at the end of maternity leave

If an employee is sick on her return from Statutory Maternity Leave, she should follow normal sickness procedures. An employee is unlikely to satisfy the eligibility criteria for Statutory Sick Pay if she did not receive any pay during the final 13 weeks of her maternity leave. She will be entitled to contractual sick pay in the normal way.

If an employee’s working conditions are affecting her health and safety on her return from maternity leave, you may need to carry out a risk assessment and take appropriate action.

Where a woman is treated less favourably or dismissed due to sickness absence related to childbirth which occurs after her return to work, it may be sex discrimination, but only if a man in a similar situation would not have been so treated. The woman no longer has protected status as this ends with the end of her maternity leave. Any pregnancy-related sickness absence and the time spent on maternity leave must still, however, be ignored for disciplinary purposes or if selecting for redundancy. An employee is protected against unfair dismissal in these circumstances.

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Relevant legislation

  • Equal Pay Act 1970
  • Sex Discrimination Act 1975
  • Employment Rights Act 1996
  • Employment Act 2002
  • Work and Families Act 2006
  • Maternity and Parental Leave etc Regulations 1999
  • Management of Health and Safety at Work Regulations 1999
  • Social Security Contributions and Benefits Act 1992
  • Statutory Maternity Pay (General) Regulations 1986

Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.

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