Can sickness absence trigger maternity leave?

24 September, 2010
Tackling some of the tricky issues that might arise for pregnant employees
Page 33 

There are only a few weeks to go before a pregnant employee goes on maternity leave and she has just rung in sick. You don't want to be messed about; you need certainty. So can you rely on this event to trigger an earlier start date?

We receive many sickness absence and pregnancy-related questions, which can be problematic areas for our members. But what seems to cause a major headache is when the two overlap.

We have recently been asked whether an employer has the right to force a woman on to maternity leave early if a period of sickness absence occurs close to her anticipated maternity leave date. Let's suppose she goes off sick during the fourth week before her expected week of childbirth (EWC). This is due to an illness unrelated to her pregnancy and it continues until the third week before her EWC. During this time, she receives sick pay. However, during the second week before her EWC, she is absent again, this time with a pregnancy-related illness. So what is the position with maternity leave and pay?

Where a pregnant employee falls ill and it is unrelated to her pregnancy, your hands are tied; she can take sick leave right up to the start of her maternity leave, regardless of when it occurs. So, during the first period of sickness absence, she cannot be forced on to maternity leave and, assuming she qualifies, she will get Statutory Sick Pay. But if any sickness absence occurs in the four weeks before EWC that is "wholly or partly pregnancy-related", you can start her maternity leave (and pay) the first day after she becomes unwell. This means her maternity leave could be triggered the second time. This will be the case even if she recovers and returns to work before the four-week period is up. In this situation, once maternity has started it cannot be stopped.

But in practice, most employers won't put a woman on maternity leave and start paying her Statutory Maternity Pay (SMP) if she is absent due to a pregnancy-related health reason in the last four weeks before her EWC. The exception seems to be where the employee has additional contractual maternity rights within her period of sickness but this is rare.

Delaying maternity leave but starting SMP because of a pregnancy-related absence in the four weeks before the EWC could cause you problems. It might mean the employee finds her SMP running out before the end of her ordinary maternity leave. As this could result in unnecessary queries, it is safer to start both at the same time.

HMRC has produced a free 'Help Book for Employers on Statutory Maternity Pay'. You can also contact its employer helpline on 08457 143143.

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