In recognition of the vulnerabilities that come with pregnancy, pregnant employees are afforded special legal status. Pregnant employees can be more susceptible to illness, with common pregnancy-related illnesses including nausea, vomiting, fatigue, back pain and bleeding. This can result in higher instances of absence from work.
Employers and managers should approach pregnancy-related sickness absence with care, to ensure they are respecting workers’ rights and providing adequate support.
What counts as pregnancy-related illness
Pregnancy related sickness is any medical condition or illness that is directly related to being pregnant, for instance morning sickness, extreme exhaustion, sciatica and pre-eclampsia.
Where a pregnant employee is unable to take her regular medication during pregnancy and develops some form of medical difficulty that prevents her from carrying out her usual work, this may be accepted as a pregnancy related sickness. A Fit Note should clarify the situation.
Where an employee’s developing pregnancy places her at risk in her existing workplace, for instance, because her job requires her to handle certain toxic chemicals, it may be that she is required to take paid time off work until her employer can alter her work conditions or find alternative employment for the period of her pregnancy.
What is the protected period?
The ‘protected period’ aims to prevent women from suffering unfair treatment on the grounds of their pregnancy or related illnesses. For women who are eligible for maternity leave, the protected period begins on the date the employee tells their employer they’re pregnant and lasts for up to 18 months from the date the child is born.
If the pregnancy ends early and the employee does not have the right to statutory maternity leave, the right lasts for 2 weeks after the end of the pregnancy.
During this time, employees are protected under the Equality Act 2010 from discrimination, unfair treatment, or dismissal related to their pregnancy or maternity. Employers must also provide reasonable adjustments to ensure the safety and well-being of pregnant employees and ensure fair treatment in all aspects of work, including opportunities, pay, and benefits.
The procedures for managing pregnancy related sickness absence may have much in common with the managing of any sickness absence – the need for consistent reporting and recording, communication between the employer and the employee, the undertaking of risk assessments, where appropriate, review process and help to return to work. But there are a number of differences that an employer must be aware of to avoid breaching the employees’ rights and being faced with possible claims of discrimination.
How to manage pregnancy-related sickness absence
The process for managing pregnancy related sickness absence should be documented in the sickness absence policy and the related procedures must be followed consistently.
The usual process for managing sickness absence must be used for pregnancy related sickness absence with one main exception. Pregnancy related sickness absence must be recorded separately to other sickness absence and must not be treated as ‘absence’ from work. It therefore cannot be used against a pregnant worker to point to a dissatisfactory attendance record, for instance. Using pregnancy related sickness absence in this way would be seen as discriminatory and could lead to a claim for discrimination and legal action.
It should also be noted that because pregnancy related sickness absence is not treated as a true ‘absence’, it cannot trigger certain processes related to usual sickness absence. So, for instance, where a normal sickness absence period of two months might trigger a formal absence review meeting, this would not be the case for a pregnancy related sickness absence of the same length of time.
Should the pregnancy related absence lead to the payment of sick pay, they will be paid the same amount that any other, non pregnant employee on sickness absence would receive.
Employee rights to time off work for pregnancy related sickness
A pregnant employee is protected against unfair treatment, discrimination or dismissal. This includes rights relating to pregnancy related sickness absence.
Paid sick leave
A pregnant employee has the same right to paid sick leave as any other employee, regardless of the length of that absence. The exception to this is during the last four weeks before the due date of the baby. If a pregnant employee goes off sick during that time, her maternity leave will generally start automatically.
Sick pay
A pregnant employee has the right to be paid the same level of sick pay as any other employee who is absent from work due to sickness.
Antenatal and other pregnancy related medical appointments
Pregnant employees are entitled to paid time off to attend antenatal and other pregnancy related medical appointments. They must ask their employer for permission, but any refusal to attend an appointment must be seen as reasonable on the part of the employer.
The employer may ask that the appointments be made outside of working hours but again, this must be seen as a reasonable request to make.
Fair treatment
In the case of pregnancy sickness absence, this means that the same sickness absence process should be followed as with any other absent employee, and the same considerations made. For instance, contact between the employer and the pregnant employee should be geared towards helping the employee to return to work, but with consideration for their pregnancy and health. Where it is necessary to carry out risk assessments prior to an absent pregnant employee returning to work or to make adjustments to their working conditions, the same process should be followed as with any absent sick employee.
Safe working environment and conditions
As with any employee, the employer is obligated to provide a safe working environment and practices to a pregnant employee, and carry out the necessary risk assessments. A pregnant employee may face extra risks in the workplace, such as the inability to lift or carry heavy loads, not being able to stand or sit for long periods of time without a break, and the risk of exposure to toxic substances harming their baby.
Should the employee’s pregnancy related sickness mean that they cannot safely return to their current working conditions, they have a right to paid leave until they can safely return to work or their maternity leave begins. For instance, where an employee’s mobility has been greatly reduced as a result of their pregnancy and it is therefore not safe for them to work in an area that would require them to regularly walk up and down several flights of stairs, it may be necessary to move their workstation to the ground floor, or find them alternative duties, or both.
Pregnancy related sickness absence to not be treated as ‘absence’
Pregnancy related sickness absence must not be recorded as absence in the way that general sickness absence is. Where continued sickness absence due to an illness or injury could be seen as a reason for concern and lead to formal reviews and possibly dismissal, pregnancy related sickness absence cannot be used as evidence against an employee’s record of attendance or performance.
Is the use of a Fit Note still relevant?
Generally, a Fit Note will be required once a period of sickness absence has exceeded seven days. The same applies to a pregnancy related sickness absence, even though it will not be recorded as a ‘true’ absence. The value of a Fit Note for a pregnancy related sickness absence is exactly the same as for a general sickness absence, in that it can help in putting together a return to work plan for the absent employee. Any such plan is reliant on having all the facts to hand, including medical evidence.
Contacting an employee while on pregnancy related sickness absence
In line with your sickness absence policy, all line managers and supervisors should be fully trained in how to communicate with absent employees and the related return to work process.
As part of that training, further information should be provided to avoid discrimination when dealing with pregnancy related sickness absence. This could include:
- What is a pregnancy related sickness?
- What rights does a pregnant employee have?
- How does the process for managing pregnancy related sickness absence differ from general sickness absence?
- When is sick pay triggered for a pregnancy related sickness absence?
- How can a pregnant employee be helped to return to work, e.g. by carrying out pregnancy specific risk assessments?
Pregnancy related sickness absence during the last four weeks of pregnancy
Where an employee takes a pregnancy related sickness absence during the last four weeks of their pregnancy, the employer may decide to automatically begin the employee’s period of maternity leave with the corresponding maternity pay.
This decision is for the employer, regardless of whether a maternity leave beginning date had already been specified by the pregnant employee.
Need assistance?
DavidsonMorris’ employment solicitors are on hand to answer any queries you may have about pregnancy related sickness absence and the rights of pregnant employees in the workplace. For advice on a specific issue or to help review your policies, procedures and training relating to pregnancy and maternity, contact us.
Pregnancy related sickness absence FAQs
Can an employee take time off work because of pregnancy related sickness?
Pregnant employees are entitled to take time off work due to illness relating to their pregnancy. This should be recorded separately to other types of sickness absence.
Can a pregnant employee be disciplined for taking time off for sickness?
Pregnancy-related sickness absence should not be used as part of any disciplinary action against the employee, dismissal or redundancy.
Can pregnant employees get sick pay?
Employees absent from work due to pregnancy related sickness can claim statutory sick pay, or enhanced sick pay if contractually entitled.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
