Heavily caveated as this is advice given from (the paid version) of ChatGPT based on the original post, but it reads logically (I have the responsibility for staffing matters in my business, with the assistance of outsourced HR also but am not a qualified HR professional):
Assuming this is UK employment law, I think the outsourced HR advice is too simplistic. They are right that the employer cannot simply tell her to start maternity leave early because she looks unwell or is performing poorly. But “she says she’s fine, so there’s nothing we can do” misses some important employer obligations.
The key problem is that her reduced performance appears, on the facts given, to be very closely connected with her pregnancy and pregnancy-related ill health. EHRC guidance is explicit that an employer can address poor performance by a pregnant employee where it is genuinely unrelated to pregnancy, but poor performance linked to pregnancy or pregnancy-related absence must not negatively affect her performance assessment. Putting her through capability management because she is exhausted, attending hospital, struggling physically or otherwise affected by pregnancy could amount to pregnancy discrimination.
So I wouldn't frame the immediate conversation as, “You're only working at 50%, improve or face capability.” I'd frame it as: “The current arrangement is plainly not working safely or sustainably. We need to establish what work you can reasonably do and adjust the arrangement accordingly.”
There are several things I think the employer should be doing.
- Revisit the pregnancy risk assessment now. This isn't a one-off form completed when someone announces their pregnancy. HSE says the individual assessment must be reviewed as pregnancy progresses and when circumstances change, taking account of medical recommendations. Given hospital admissions, obvious physical difficulty and reported sleeplessness/distress, the circumstances have clearly changed.
- Get much more useful occupational-health advice. “Employee says she is fine” isn't really an adequate OH outcome. The questions should be functional: Is she medically fit to work her contracted hours? Should her hours be temporarily reduced? Are additional rest breaks required? Is evening work contraindicated? What duties can she safely perform? Are there limitations on attendance at the workplace? What adjustments are recommended, and for how long? The employer can then make decisions about work rather than trying to diagnose her. [My edit to add - you can ask the employee to allow you to contact her GP to obtain a report though this is often done through OH)
- Set boundaries around the adjustment. WFH should not mean “do whatever you can and secretly catch up until 10pm”. They could temporarily reduce workload, prioritise essential duties, remove deadlines, introduce additional breaks or amend start/finish times. Acas specifically suggests changed hours, homeworking and extra breaks in difficult pregnancies.
- Plan cover. The fact that she is “vital” is actually the company's operational problem, not hers. EHRC specifically says temporary cover can be recruited where pregnancy-related sickness is likely to be lengthy. In an eight-person company this will hurt, but allowing seven colleagues to absorb an undefined workload for two months is unlikely to end well either.
- Manage the team separately. The colleague saying “why don't you just go on maternity leave?” needs shutting down. It may have arisen from understandable frustration, but comments pressuring a pregnant employee to commence maternity leave are precisely the sort of thing an employer should prevent. Employers can potentially be responsible for discriminatory treatment by colleagues unless they've taken reasonable preventative steps.
There is also an important health-and-safety point which the post doesn't seem to appreciate. If the risk assessment identifies a significant work-related risk to her or the baby, the statutory sequence is broadly: adjust her working conditions/hours; if that doesn't work, offer suitable alternative work on the same terms; and, if neither is possible, suspend her from work on full pay on maternity health-and-safety grounds. That is quite different from telling her to go off sick unpaid. Whether that route applies here depends on there actually being a risk arising from the work/working conditions, rather than simply her underlying pregnancy making her generally unwell, so I'd want competent HR/legal advice before using it.
There is one other wrinkle. Pregnancy-related sickness is recorded separately and should not be counted towards ordinary absence triggers. And once she reaches the four weeks before the expected week of childbirth, if she is actually absent because of pregnancy-related illness, statutory maternity leave starts automatically from the following day. So the poster's “another eight weeks” may not necessarily play out exactly as they think.
But on the facts posted — previously apparently satisfactory employee, complicated pregnancy, admissions/scans, visible physical deterioration, sleeplessness, crying, inability to sit comfortably, 50% output — the obvious causal explanation is pregnancy-related ill health. Trying to separate “performance” from that and run a conventional capability process would be quite risky.
What I would probably recommend to that manager is a documented meeting along roughly these lines: we are not asking you to start maternity leave; we are concerned that the current working arrangement is neither sustainable for you nor operationally sustainable for the business; we will obtain updated medical/OH guidance, redo the pregnancy risk assessment, agree clearly defined temporary duties/hours and arrange cover for the balance. We also do not want you working beyond those agreed hours to compensate.
That approach protects her, but it also recognises something that sometimes gets lost in pregnancy cases: the employer is allowed to manage the work. Pregnancy protection doesn't require seven other employees to endlessly absorb an undefined shortfall. What it changes is how you manage the shortfall and what consequences you can attach to something caused by the pregnancy.
If I were advising the company, I would also query the outsourced HR provider quite firmly on why they haven't suggested an updated risk assessment and a functional OH referral. Those are the two most obvious next steps from the facts given.