Legal Rights and Responsibilities for Sick Leave During Pregnancy

When you employ staff, they have legal rights, which you must comply with. As an employer, one legal responsibility is to ensure you pay staff statutory sick pay (SSP) where they qualify. You may add to this by paying more through a contractual sick pay scheme. Your pregnant employees may also get sick, and you must treat pregnant women fairly. Otherwise, you could face a claim in an employment tribunal for pregnancy discrimination under the Equality Act 2010. This article will explain sick leave legal rights and responsibilities during pregnancy, such as for pregnancy-related sickness absence. 

Why Might My Employee Get Sick During Pregnancy 

When your employees are pregnant, they are susceptible to being sick with pregnancy-related illnesses. This means any condition that relates to their pregnancy. These include, for example:

• morning sickness, which is nausea and vomiting and may not only occur in the morning;
• backache;
• pre-existing conditions that pregnancy worsens;
• tiredness; and
• headaches.

What Happens if My Employee is Sick During Pregnancy?  

If your employee is sick with a pregnancy-related illness during their pregnancy, they should report the sickness as per your sickness policy for other employees. You should also pay them sick pay as you would your non-pregnant staff. This means they should get statutory sick pay (SSP) if they would normally qualify for this. Also, if you pay your employees more than SSP through contractual sick pay, you must do the same with your pregnant employees. It does not matter if the illness is related to their pregnancy or not. Your staff will qualify for SSP where they:

• have worked for you and are considered an employee;
• earn at least £123 per week on average; and 
• have been unwell for over three days in a row, including any non-working days.

However, when you record your pregnant employees’ days off sick, you must differentiate them from any sick leave that the employee has taken while they were not pregnant. Therefore, the latter are not included towards a review or trigger points in your absence policies. 

You are also not allowed to dismiss your staff for being sick during pregnancy or treat them less favourably because they are pregnant, as this could be:

• pregnancy or maternity discrimination; or 
• sex discrimination. 

Sickness Near the Baby’s Due Date 

If your employee is sick near their baby’s due date, you can ask them to start their maternity leave early unless you both agree not to. This is where they are sick within four weeks of the due date. This is because you must consider your employees’ well-being as your main consideration. When maternity leave has begun, you must pay them maternity pay rather than sick pay.

To work out the fourth week before your employee’s expected due date, you need to count back four weeks from the Sunday of the beginning of the week their baby is due. 

Good Practice

It is good practice to be considerate towards your pregnant employees who have mental or physical health issues. Therefore, you may wish to consider changes to their work to help them. For example, you might allow the following:

• flexible working;
• differing work times;
• hybrid working; or
• additional breaks.

Performance Improvement Plan Template

If your employee is not performing at the expected level, you may need to implement a performance improvement plan (PIP) to get them back on track. Download our free PIP template.

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Key Takeaways

When your employees are pregnant, they may get sick and are also likely to suffer from pregnancy-related illnesses. Pregnancy-related illnesses include, for example, backache and tiredness. It can also include existing conditions, which worsen due to pregnancy. When your employee is sick during pregnancy, they must report it as other staff do, and you must also pay them SSP where they qualify for it or any contractual sick pay you offer. However, you do not record the sickness as part of their formal sick records if it is pregnancy-related, as it does not count towards trigger points in your sickness policies. If your employee is sick within four weeks of their due date, you can ask them to start their maternity leave and pay them this rather than sick pay. 

If you need help understanding your employees’ leave entitlements, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So call us today on 0808 196 8584 or visit our membership page.

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