Can you dismiss someone for repeated sickness when they are pregnant? Also, would they be entitled to maternity leave from the company if they have been sick a lot throughout the year?

Answered by Sheila Scott

Dear J,

Thank you for your important question.

We sent it to Chris King at Napthens who are our employment law experts. This is what Chris said:

You can dismiss someone for repeated sickness when pregnant, but only if the sickness does not relate to the pregnancy. There should be clear records after every period of sickness, perhaps from completed return to work forms which should make it clear when the sickness is pregnancy-related and when it is not. Any period of pregnancy-related sickness should not be relied upon in any decision to dismiss so if, when discounting the pregnancy-related illness, the employee doesn’t reach the trigger points to commence any formal action against her (perhaps under the Bradford Factor or other method of calculating triggers) then no action should be taken. The employer should also ensure that they are not digging up old, irrelevant records to try and bolster a case against the employee. If the employee has not followed the sickness absence reporting procedures under any Sickness Absence Policy then this may be a separate misconduct issue to address.

Dismissing someone who is pregnant is always high risk and the employer should be very cautious in doing this, especially if the employee has received no previous warnings for sickness absence. They need to ensure all the evidence is clear and concise and they follow a process of staged warnings rather than immediately jumping to a potential dismissal. They should also ensure they follow the ACAS Code of Practice throughout any formal process. Failing to do so could result in an unfair dismissal claim if the employee has service and, more importantly, a claim for pregnancy and maternity discrimination, the potential compensation from which is unlimited.

All female employees are entitled to maternity leave from the first day of their employment regardless of their sickness absence record. However, their entitlement to maternity pay will depend on their length of service. The employee must have:

1. Been continuously employed for at least 26 weeks by the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC). The 26-week period must include at least one day’s employment in the Qualifying Week.
2. Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for National Insurance purposes.
3. She is still pregnant 11 weeks before the start of the EWC (or has already given birth).
4. She gives the employer at least 28 days’ notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date she intends SMP to start.
5. She supplies a certificate (usually a MAT B1) from a midwife or doctor, confirming the date of her EWC. This must be given to the employer either before the birth, no more than three weeks after the birth or, if she has good cause for delay, as soon as reasonably practicable.
6. She has ceased work.

In these circumstances she will also be entitled to maternity pay. Sickness absence does not have an effect on entitlement to take maternity leave or to maternity pay.

Best wishes.

Sheila