Can sickness absence trigger maternity leave?
There are only a few weeks to go before a pregnant employee goes on maternity leave and she’s 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?
Strictly between us
We receive may sickness absence and pregnancy-related questions which can both be problematic areas for our subscribers. But what seems to cause a major headache is when the two overlap.
What’s the problem? We’ve recently been asked whether an employer has the right to force a woman onto maternity leave early if a period of sickness absence occurs close to her anticipated maternity leave date.
Repeated sickness absence
Let’s suppose that Jane 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, Jane is absent again; this time it’s due to a pregnancy-related illness. So what’s the position with maternity leave and pay?
Is it pregnancy-related?
Where a pregnant employee falls ill and it’s 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 Jane can’t be forced onto maternity leave and, assuming she qualifies, she’ll get Statutory Sick Pay. But if any sickness absence occurs in the four weeks before her 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 that Jane’s maternity leave could be triggered the second time.
Tip. This will be the case even if Jane recovers and is well enough to return to work before the four week period is up. In this situation, once maternity has started, it can’t be stopped.
The practical arrangements
In practice, however, most employers won’t put a woman on maternity leave and start paying her Statutory Maternity Pay (SMP) if she’s 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 and wants to start her maternity leave early and within her period of sickness - but this is rare.
Tip. Delaying maternity leave, but starting SMP because of a pregnancy-related absence during the four weeks before the EWC could cause you problems. It might mean that the employee finds her SMP running out before the end of her ordinary maternity leave period. As this could result in unnecessary queries, it’s far safer to start both at the same time.
Can the Taxman help?
HMRC has produced a free “Helpbook for Employers on Statutory Maternity Pay”. Not only does it set out the rules on SMP in a clear format, it contains a useful table that allows you to calculate EWC dates right up until the end of May 2011. You can also contact its employer helpline on 08457 143 143 with any queries.
For a link to HMRC’s Helpbook on Statutory Maternity Pay, visit http://personnel.indicator.co.uk(PS 12.15.07).
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