Sickness absence during pregnancy: four key questions for employers

Employers need to take care when managing sickness absence during pregnancy, to ensure that they comply with their legal duties and protect the welfare of their employees. We answer four key questions to help employers get it right.

1. Do you need to modify your attendance policy?

An employee who is suffering from a pregnancy-related illness will be protected under the Equality Act 2010. The employer must ensure that it does not discriminate against the employee by treating her unfavourably because of sickness absence that results from her pregnancy. For example, it may need to modify how it applies its attendance policy, if a certain amount of short-term sickness absence could potentially lead to disciplinary action.

2. Do you know the reason for the sickness absence during pregnancy?

If a pregnant employee is absent due to sickness, the employer needs to know whether or not the sickness is related to the pregnancy. This will help to make sure its actions do not amount to pregnancy and maternity discrimination. It is also particularly important to be aware of any pregnancy-related sickness as the expected birth date approaches, as any absence could automatically trigger the start of the maternity leave period.

3. Are any aspects of the employee’s work contributing to her illness?

Employers have various duties in relation to carrying out risk assessments for their pregnant employees, including where the work is of a kind that could pose a risk to the health and safety of an employee or her baby. The employer should review the relevant risk assessments if an employee goes off sick during her pregnancy. It may have a duty to allow the employee to take more breaks, for example, or to offer her alternative work.

4. Are you paying the employee correctly?

If an employee has taken a number of short-term absences from work due to pregnancy-related illness, these may be linked for the purposes of payment of statutory sick pay.

The employer must ensure that it is paying the employee correctly and that its policy on contractual sick pay in these circumstances does not disadvantage the employee because of her pregnancy.

The European Court of Justice has ruled that an employee is entitled to a minimum level of pay while they are absent due to pregnancy-related illness, even when they have exhausted their normal entitlement to statutory and contractual sick pay.