Wwyd? Pregnant employee. Don’t want to be sued but, ah!

[HavanaOhna]

I’m manager for a small company, there are about 8 employees so very small. We had a lovely young woman started in the new year who found out she was pregnant shortly after. Absolutely fine.

we’ve been very supportive as her pregnancy has been complicated, loads of additional scans, scares, admissions. We’ve always told her to take the time she needs for these, paid and to take extra time after them as they can be taxing. Sometimes she takes the whole day for one scan and that’s ok.

The issue is she’s now 7 months, seems incredibly poorly but won’t go on sick due to finances (has exhausted sick pay, this would be unpaid now). She’s WFH, at her request and our blessing, and is doing I’d say the bare minimum. Just scraping by work wise. Every time I see her on teams she looks gaunt, and exhausted, and has admitted that she’s tearful, not sleeping, and has had further pregnancy issues. These are all supported by documentation.

Then a few days ago she came into the office. First time in months. She could barely sit at her desk, she wasn’t doing much all day, up and down to the loo, extended lunch break. I really feel for her. We had a wellbeing meeting and she’s insisting she’s fine. I organised an occupational health session and she reiterated to them she’s fine, but you can see she’s on her knees.

I don’t really know what to do. She’s vital at work and although things are being done she’s working at I’d say 50% capacity. If this is mentioned, she promises she will sort it out so ends up working into the evening (which again we don’t want). A colleague became so frustrated the other day she pointedly asked her why she doesn’t go on maternity early and this wasn’t met well. Others are having to pick up the slack heavily, and some colleagues have started to avoid her completely work wise.

HR (no in house, outsourced) said not much we can do as she cannot be forced to take maternity leave early and if she says she’s not sick she’s not sick but I don’t know how we can do another 8 weeks going forward. I feel team morale is low, she is obviously unwell.

Well, it’s up to you whether she has ‘exhausted sick pay’ and any further leave would be unpaid, isn’t it? She’s risking her pregnancy working if she’s this unwell but she clearly can’t afford to take unpaid leave. I can understand why she wouldn’t want to use her maternity leave this far ahead of her due date. So the question is, what are you willing to do to help her?

I’m just a manager unfortunately. If it was up to me I would 100% just let her be on sick pay until due date. Our CEO is following outsourced HR guidance but has told me to manage the situation (he is abroad). Could I push for outsourced HR to say she needs full sick pay reinstated? Last time I spoke to them they just said crack on with it, basically.

im also worried about the current impact of the rest of the team.

you could offer a reduced workload with regular reviews
when is her maternity cover starting coined you get them in early yes 2 salaries but cheaper than a tribunal

Could you get her maternity cover to start early?

Can you reduce her workload to a symbolic level? What arrangements are there to cover for when she is on mat leave?

Might be worth contacting the charity Pregnant Then Screwed. It is for people who are treated badly at work when pregnant. Maybe they could advise on best practice.

I mean if she fell pregnant so quickly after starting it is unlikely she will qualify for statutory maternity pay either would she?

What did the occupational health report say? Regardless of what she says, if she is clearly unwell they should have picked up on that. You can also ask her if you/HR can consult with her GP so you cam be certain you are supporting her as much as you can. That might mean that they also agree she shouldn't be working and might give you options.

I guess your HR team and ACAS are the routes to go to

Is she planning to work (from home) right up until the due date?

Yes that’s the plan.

In a small team, you can't have this level of resentment carrying on for the next 8 weeks for a fairly new employee who is disrupting work flow. I know you say your HR is outsourced but do you have access to legal advice via the business insurance? That turned out to be vital for us when we had an employee who wasn't well enough to work but refused to go onto SSP.

As a small business owner, situations like this are my worst nightmare.

I would have thought that the issue, as a small company, is how much can they afford to pay her when she is not really doing her job. I would suspect that most could have insisted that she starts her maternity leave or takes unpaid sick leave. She hasn’t been working there for even a few months before she’s become completely unreliable. This company and management seem to have been extremely supportive.
It’s lovely that they’ve been so good so far but realistically I’d have thought she was in a difficult position.

No SMP, just maternity allowance which I think is adding to the financial anxiety. The occupational health session was done over the phone and says basically yes she is having complications and is tired, but is able to WFH. Yet when you physically see her you do think how are you managing this?

CEO has given the maternity cover over to a recruitment agency. We’ve had one round of interviews but nobody who has suited so it’s likely there won’t be much time of them working together to fill that gap, plus they’d need some training which I personally don’t feel she would be able to give

This is what it comes down to but unfortunately pregnancy discrimination is so big, you cannot force someone pregnant on sick leave nor to take early maternity- both are tribunal worthy.

You sound like a great manager and that you have been very supportive.
I think I would say that at 7 months you can see she is struggling and offer to pay her in full for one month (but not requiring her to work) and then she starts maternity leave at 8 months. Maybe the HR team can support with this?
You say she is vital? What is the plan to cover her role while she is on maternity?? Have you got a temp coming or is the work to be absorbed by the team?
potentially it sounds like she could be admitted to hospital at any time then I’m guessing at 7 months if this occurred her maternity leave would likely commence anyway?
I understand colleagues being annoyed about this too but I think you need to communicate with them what the plan is for when she goes on maternity leave to reassure them.

Are you able to ask that she supplies a "fit to work" note from her GP or Midwife? I would want one in this situation just to cover your backs legally.

Pregnant or not, she’s under-performing and that should be addressed. If occupational health has said she’s fit to work then it’s a performance issue.

There is some dubious advice here OP.

I would stick to asking your HR services. You’re absolutely right that it’s incredibly risky.

If she's WFH, that's better than in office because clearly there are mixed feelings between feeling for her and feeling resentful of her. The private decisions around her case do not need to be shared with all the other employees so if you were to agree that she's only doing 50% fte and flexible hours and someone else was going to be picking up 50%, and she was happy with that as long as she was on full pay, you wouldn't need to disclose to the other employees that she's being paid in full..I'd check the rules with acas but I'd be telling the CEO that if she's really only able to do 50% anyway and she's needed, she'll be better able to do 50% if she's not stressed trying to do 100% and worrying about money, and if she's able to commit to her exact agreed tasks for that 50% that's what other colleagues are going to care about.. they don't want their work delayed because she can't keep up. How you treat her now is how she'll remember being treated for the rest of time and will influence her loyalty post maternity leave. How you respond to the clear workflow issue will influence how the rest of the staff feel about the organisation.

Agreed - under 2 years service, you have grounds for dismissal on performance grounds.

I'd look to get rid - as another poster said, in a small team, low morale can be awful and devastating for the rest picking up the slack.

If she is absent from work in the 4 weeks preceding her mat leave, due to pregnancy related illness, I believe maternity leave can be triggered automatically. At least this used to be the case. Mine are now older so I’m not 100% on maternity laws. But that will rely on you being a firm manager and managing her performance if she’s otherwise determined as fit to work. It’s not illegal to not permit wfh just to avoid sick leave. It’s perhaps not nice, and maybe an uncomfortable conversation. But if they’re not performing to an adapted capacity with reasonable adjustments, it still becomes a performance issue.

What does her pregnancy risk assessment say? Health and safety exec states employers should look at the risk of fatigue for pregnant employees and put adequate mitigation and reasinable adjustments in. This could look like truncated hours, reduced workload/responsibilities etc until the risk of fatigue resolves. Where an employer cannot adequately mitigate an identified risk including by redeployment elsewhere within organisation then they must suspend employee on medical suspension on full pay until the date the employee chooses to begin mat leave. I would speak to HR about the risk assessment and risk of fatigue and see if you can drive full pay medical suspension that way and bring in cover earlier.

Sounds like a high risk pregnancy and there is a good chance the baby will be early. You need to focus on recruitment.

That’s surely not allowed? Pregnancy is a protected characteristic.

You sound like a really supportive manager :)

Could you agree a flexible working arrangement with her, even if it's not formalised? E.g., working 10-2, or just doing set tasks.

That way she will be better able to manage, know what's expected of her, and colleagues will know exactly what it is she can and cannot do?

I think this might be correct ( but also not 100%). If she takes any sick time off for pregnancy reasons in the four weeks before the week of her due date then statutory maternity leave kicks in immediately.
Are you sure about her dates?

yes but that’s the issue, she is sick but isn’t going off on the sick :(