Taking sick leave then maternity leave

[remdog]

Hi all

My MIL owns a coffee shop/bakery in England, she previously was the manager but bought it from the old owner in February this year. She has an employee who has been off sick since the end of June with back pain - before she was signed off, she announced she is pregnant. Her back pain was an issue before she got pregnant, so I don’t think it’s classed as a pregnancy related illness. My MIL tried to implement several things to help her at work such as no washing up and lifting heavy things, and shorter shifts. This already wasn’t ideal as she cannot do 90% of the things required for the job (all she can do is take orders and make coffee) but she understood adjustments should be made so put these in place. She then went off sick and has been ever since.

This employee has her own business doing nails where she is hunched over all day and is still doing this very often, as well as just generally being out and about and doing things all the time - my MIL is really struggling to afford her SSP as the business had a lot of problems she wasn’t told about when she took it over, so it’s quite upsetting to see her doing all these normal things but getting doctors notes saying she’s unable to simply stand (or sit!) behind the bar and take orders.

She is currently getting SSP and is due to go on maternity leave in late November - from my understanding, she is allowed to go on maternity leave and then straight back onto SSP after which we are certain she will do if she can - is this correct?

Is there any way she can be let go after her mat leave ends or would that be pregnancy discrimination? She was close friends with my wife for a number of years, her parents and fiancé are VERY well off and we know she doesn’t need the money as she is fully supported at home. Obviously she will get whatever she is entitled to but she has already accrued a load of holiday as she’s been off on SSP which she’ll be claiming, and then the added SSP when she is back which the business could really do with not paying for. If it’s relevant, she has been employed by the business for 2+ years but my MIL took it over in Feb and changed the company registered name on the gov site so I believe technically everyone has only been employed since February. I really hate to sound like someone who is trying to scam someone out of what they are entitled to but my MIL is working 60+ hours a week on less than min wage to try and fix this business and she is here working nearly full time at her self employed job plus taking nearly £500 a month which we are fully aware she doesn’t need a penny of.

Thanks in advance

I think you need to take the personal element out of this and look at it legally.

There is a big difference in sitting doing nails to standing and taking orders and moving around.

Also it's none of your business of how wealthy her family is and if they are supporting her and if she needs the money or not (which she obviously seems like she does need). You are no one to judge whether she needs the money.

Look into how this can be dealt with legally.

This is why I am posting here as I would like to know how it can be dealt with legally.

Hi -

Not a legal expert but I do have a keen interest in this sort of thing.

Yes fairly sure she can be signed off sick once maternity leave has finished (with mat leave, almost try and ignore the fact they aren't in the workplace, they are an employee so she can take sick leave whenever she likes).

Employers can make employees on mat leave redundant, but you would need water tight (potentially expensive) advice and hand holding on how best to manage this - you would need to prove her role and no other roles in the business were suitable and with it being a bakery it's probably easy to argue there are.

the fact she / her family are wealthy is irrelevant so I'd try and stop this way of thinking as it will not help your feelings towards the matter.

dont forget this hasn't happened yet but I think give ACAS a call as a first step - if she does go off sick once she returns from mat leave might be easier to put her on a a capability plan (ie never in work, so incapable of doing the job)

SSP is only paid for 28 weeks. How long has she been claiming it

I would just sack her and take the consequences. Absolute chancer. People like her do no favours for genuine people.

Did your MiL take any legal advice when she took over the company? It’s likely any employees should have been subject to TUPE and therefore she will retain her length of service. I would take legal advice on this. Sacking her and taking the consequences, as someone has said above, could be very expensive in the circumstances, particularly as she will likely say the back pain was exacerbated by pregnancy. Tread carefully.

Thank you for that, that’s very helpful - redundancy may be an option in that case as they have just made another staff member redundant due to their financial situation. She is the most recent staff member to join (aside from 1 other who now has additional responsibilities that she doesn’t have), would this be a good enough reason for redundancy? She hasn’t actually started Mat leave yet, she’s due to at the end of this month so isn’t actually on it yet if that makes a difference.

I know her personal situation isn’t relevant but with her being a former close friend it just destroys any sympathy I have for her situation, knowing she’s making my MIL’s life so much harder when she doesn’t even need the money.

I will give ACAS a call on Monday, thanks ever so much for the advice

I'm an employment lawyer - this is terrible advice, please do not do this. Discrimination claims (which is what you'd be looking at) come with uncapped compensation awards

The change of company name won't make any difference, she's entitled to continuity of service so she will have 2+ years service. That being the case, you need a fair reason for dismissal - your MIL could go through a process now along the lines of capability/not genuinely sick, but it would be a riiiiisky risky approach to take in the circumstances.

If she comes back off mat leave onto SSP, then you could look at a capability process, but would need to be very careful

I say to clients all the time that even if you are super careful claims can still be brought and it can be really expensive to defend a claim, even if it doesn't have the strongest of prospects (and I could see this one having some legs in it). My firm would be estimating £10k+ in terms of legal fees to defend a claim like this - and we're Glasgow based. If you're further south, you'd be looking at double that easily

If she was signed off at the end of June and ML kicks in from end of November, then she will have nearly maxed out the max 28weeks sick leave you can claim. So even if she does claim it when she comes back, it will only be for the last 8weeks or whatever. It may end up being cheaper to just pay the remaining 8weeks than get into expensive legal advice.

I’m unsure about this - I would imagine if this is usually the case she has retained her length of service which means she’ll have been there over 2 years. I am thinking redundancy may be the way to go as they have just let another staff member go due to the place being overstaffed when she took it over.

@remdog the fact you've mentioned her personal situation suggests it's effecting your bias towards the situation 🙂

lawyers may correct me but I don't think the fact she is the newest employee is a reason full stop you can make her redundant - she's been there 2+ years. It anything you could claim she doesn't know the business as well as others, but again this is a bit wishy washy - if she does go sick after returning I would look down the sickness capability route. Forgive me, but sounds like a bit of unconscious bias going on here so be very careful - don't just sack her

ACAS are utterly dreadful for employers, we've found this the hard way (small business owner). You just have to wait out the SSP and then can look at dismissal due to capability but it's an expensive and slow process sadly.

It makes me rage on here when people are advised to go off sick as the answer to every workplace issue. As an employer, you're the mug stuck paying holiday pay, pension/NI etc and get fuck all back from it. And when you have a suspicion that an employee is swinging the lead...... it really smarts.

Redundancy may not be the best solution either, pregnant employees are entitled to enhanced rights in those situations and unless you have a cast iron business reason for making her specific role redundant, this would be challengeable too

I fully agree, the law is so heavily geared towards protection for employees and it's crap!

Yeah it’s very much affecting my bias I am fuming at her!! Haha

But that doesn’t matter as it’s my MIL’s business and ultimately it may come down to her being let go or the business closing so any advice that I can pass on is really helpful. We will absolutely be very careful though and might look at getting some legal advice in that case

Thanks for this, it seems like it’s way trickier than I originally thought. Will make sure we seek some legal advice before doing anything

Would also be questioning how she can be signed off sick from one job but still be working another one.
There is also a certain point where maternity pay can kick in rather than SSP. Think the employer can decide this, within the rules, rather than the employee.
Wonder if there is also a claim against the person who sold the business about this particular employee and poor behaviour!
Maybe get some really good legal advice, as maternity protection is so often mishandled by companies.

If she's pregnant then you'll probsbly have to pay the mat pay anyway if you made her redundant.

I'd say your MIL will have to put up with it for mat leave. However MIL doesn't have to put in any and all adjustments on return and if she goes off sick on return. Then she needs to be managed through the sick process. You can dismiss someone who is on long term sick so make sure MIL is keeping very accurate records of everything.

The risk with this approach would be if her back condition constitutes a disability under the Equality Act.. then it's not this straight forward

Off to the workhouse, that's right🙄

If she's on SSP she may not qualify for maternity pay as her rate of pay would be below the threshold.

Yeah, that's true. She may have to claim Maternity Allowance instead and your MIL would have to give her the SMP1 form to say she doesn't qualify for SMP

True that's a point. Although the expectations around reasonable adjustments will cater for the job ie she can't sit all day if the job is working in a café

https://maternityaction.org.uk/advice/sickness-during-pregnancy-and-maternity-leave/

This gives a lot of info

She may not qualify for SSP if she takes the full maternity leave and has not been paying the minimum needed to qualify.

I think you may be right… have looked and she won’t qualify for SMP, only MA which is classed as a benefit not an income. So that means she doesn’t have an earned income for the qualifying period I guess? That’s good to know, will pass that on thanks