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.

Hence why so many women are discriminated against for being pregnant.

You just get rid of them. The single most important time when a woman is most vulnerable and you just bin them off.

people like you cause the motherhood penalty and directly contribute to women’s oppression purely for having female bodies.

The point is this is a small company. They have been more than generous already. She needs to be assessed for fitness to work and go off sick on statutory sick pay or begin her maternity leave early. She is simpy not well enough to come to work and do her job properly..

This is madness. No one should expect to be paid for a job they're not doing. I've had to leave a job before due to being too unwell to continue. I've also just had a baby and am managing on a shockingly low income as wasn't entitled to SMP. I would never have expected an employer to pay me for not working just because I was vulnerable! She can claim benefits if she's that hard up, like the rest if us would have to.

I think you probably need to go back to HR and ask them what they suggest you do about the fact that her performance is below the expected standard? If she is fine (according to her), and her poor performance is negatively impacting her colleagues and the company, there has to be plans to change that. That could be suspending her on health grounds, for instance, but it has to be addressed one way or another. I’m not suggesting hounding her out, before anyone jumps on me, I’m saying OP needs HR advice in where they go if her employee is saying she is fit for work and OH are saying she is fit for work, yet her work is not reaching satisfactory standards- despite adjustments, such as working from home. She is either fit to do her job and is not performing well, or she is not fit to be working and this affecting her performance- it can’t be both. So, either she needs to be off (whether that is sick leave or maternity leave can be agreed, and how she is remunerated when off can be negotiated), or she needs to start meeting expected standards- possibly by being supported in whatever way is deemed appropriate. This may need legal advice from an employment lawyer, and, I suspect, very careful documentation of every aspect.

Being pregnant does not absolve you fulfilling the requirements of your employment- you can ask for mitigation and support, and that’s fine- but there does come a point where you have exhausted that. If you have, and still cannot do your job satisfactorily then something has to give. It’s entirely understandable that larger employers have more resources at their disposal than very small organisations- that’s part of the risk/benefit you assess when choosing to work for a small vs larger organisation. In my view, this lady is not playing fair- and I suspect will find settling back into work quite difficult as she has built up resentment towards her. Additionally, employers are not charities- they do need to abide by the law and give appropriate support- but there are limits as to what is fair to expect. I feel this woman may be pushing that boundary at this point.

OP just a thought, but if she fell pregnant not long after starting work for you, she will only be entitled to maternity allowance, and that could be affected by sick leave, depending on circumstances. To qualify for the standard allowance she must have been employed for at least 26 weeks out of the 66 weeks before the due date and have earned (via wage, sick pay or SSP) at least £30 a week in any 13 of those weeks. Could it be that she thinks going off sick unpaid will affect her maternity pay in this way ? From what you’ve said, it seems as though she already satisfies the thirteen week rule.

As a PP has said upthread, either she is fit for work or she isn’t. And if she and HR agree she is fit to work then she’s under performing and that’s a different matter. If she’s not meeting the standard for the job then that can be addressed regardless of pregnancy but you need to tread carefully, get sound legal advice and document absolutely everything.

Hi op I would ask her in for a formal meeting minute the meeting and explain your concerns as her manager for her and her unborn baby and if she’s not entitled to ssp you are happy for her to go on mat leave early. if she’s says she wants to stay until x day as she isn’t sick just tell her ok that’s fine you will accept her decision but her work load is suffering and you are concerned she’s putting herself under pressure to perform her duties as per her contract then if she still says she’s well enough to carry on working let her know she needs to increase her performance as it’s having an impact on the rest of the staff and once you find her replacement she can train them and it will help her reduce her workload. You have it recorded then for any further issues if she does decide to sue the company. She is lucky to have a supportive manager.

She will be entitled to universal credit to top up her maternity pay though? Depending if she has a partner working or not - you need to tell her to check on entitled.com and see what she’s able to claim as this may help her stop worrying about money so much

Ultimately though she’s been under performing since she started working for you. She will probably be planning on working from home WITH the baby when she goes back to work! Which isn’t going to work or is legal so I’d find a way to replace her now

Ok, but pregnant women also need to play their part too. Saying you are 100% fit but performance slumping? You can’t have it both ways- support and help is necessary, but there comes a point where you have to be honest and play it fairly too. If you don’t, the next woman who comes behind you will find it more difficult. Pregnant women aren’t always innocent victims, some do take the piss, as with any group of people.

Not because she’s vulnerable, because she’s having pregnancy complications impacting her ability to work which is a protected characteristic.

Lots of people get paid when only fulfilling part of their role temporarily for lots of reasons. As per examples given.

shes due in 8 weeks, it’s perfectly reasonable to make adjustments that don’t detriment her.

And just because that’s not what happened for you, doesn’t mean it shouldn’t happen at all when the employee clearly needs additional support.

agree you definitely need to spell it out to her that she’s under performing and the colleagues are having to do most of her job so she either is well on which case she’s just not doing her job or she’s ill and needs to go off sick!!

I would speak to HR and explain that the lack of sick pay means that this woman is working when she shouldn’t be and this is putting both and her baby are at risk - and the financial and legal implications of this [and potential negative publicity] for the company surely outweigh the cost of full sick pay until planned maternity leave is due to start? I would cc this email to your CEO. They need to see the bigger picture from a financial perspective.

Shitty that this may be the only way to ensure they behave humanely, but money/risk to profit always smooths the way.

Nobody is binning her off, don’t be ridiculous. If the employee herself and HR agree she is fit to work then she is under performing. It’s that simple. OP has already made adjustments for her pregnancy and if nothing more is possible the only option left is a disciplinary for not meeting the required standard. OP will have to tread carefully and get water tight legal advice but assuming she does it correctly it’s not discrimination.

Correct. But she seemingly - clearly - according to the OP isn’t 100% fit. So why treat her as if she is, making no allowance for the fact she is in the throws of a complicated health impacting pregnancy with financial concerns

its willful ignorance, and unlawful discrimination.

‘Not my problem’
‘She got herself into this’
’She could have had an abortion’
’why Does she get special treatment’

equity for women who carry the burden of pregnancy, won’t happen by itself.

She’s insisting she’s fit to work. HR agree. Her pregnancy doesn’t protect her from disciplinary action for under performing if the pregnancy is not the direct cause. Which seems to be the case.

It isn’t unlawful discrimination if everything in the way of adjustment has been made and she is still under performing. It’s her choice to stay in work and OP has stated HR agree she’s fit to work. Legally it’s a difficult situation.

You won’t get this situation through disciplinary for as long as she is pregnant.

And in her specific circumstances- rightly so.

There is a capability issue due to a lawfully protected characteristic, not a performance issue.

They are very different.

if you are in the UK her maternity leave stars automatically at 36 weeks if she’s off sick. I would discuss this ACAS who are excellent on employment law issues.

What would happen in your company if someone e.g.: had their appendix out, using up all their sick leave for the year, but then got knocked off their bike by a car a few months later and had to have another few weeks in hospital?
Would they not get fired but also not get paid sick leave for the second stint?

@HavanaOhna You sound to have done everything right to support your employee. The issue is the CEO.

If you can get HR to recommend sick pay to the CEO then do that. If you can’t, ask the CEO what they would say if they were being cross examined at an ET as to why they wouldn’t authorise paid leave. It’s amazing how that can focus a senior managers mind when they realise they would have to justify their decision under oath.

WRT to her role being vital - recruit the maternity cover now. If you have a limited budget see if you can phase them in e.g. start part time to do hand over.

She sounds like an utter nightmare. I’d be keen to get rid too if possible.

If she goes off sick at any time during the four weeks before her due date, then yes maternity leave can be triggered. But the reason for sickness has to be pregnancy related.

You need to call the owner and TELL HIM it is imperative you give this woman paid sick leave until she gives birth.

I think you should be very forceful about this.

Everything by way of adjustment hasn’t been made, according to the Op. All they did was agree to WFH.

I agree it would be helpful if the employee was more honest with her GP and Occ health about her ability to work. But she is under the threat of loss of income which she can’t afford. Which the management know about and could remove that as an issue at their discretion.

otherwise they just carry on as they are. Legally the situation is very clear, and in the employees favour. Rightly so given the circumstances.

You do need to follow HR advice, both to protect the well being of the pregnant employee to whom you have a duty of care, and to comply with local legislation.

Your other urgent priority is to have someone in place to cover her work- if her work is vital, it isn’t fair to just share it out among the employees already working flat out in their own jobs.

Is it a role where you could employ a short-term contractor/ agency staff? It’s unlikely that you will be able to recruit her maternity cover and do a proper handover, so you need someone to plug the gap. The CEO will have to accept that this is a temporary additional cost.