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

Sounds like your MIL would do well to get some employment law support often this can be had for a relatively small amount per month. They will provide advice on how to support and manage these kind of situations. They will talk her through how to keep in touch and support the employee to try and help them back to work and if necessary how to go through a capability assessment that might result in dismissal. They will also check her current staff situation with contracts were they subject you to TUPE etc. When I owned a business I paid for this kind of service and they were enormously helpful I had a very similar situation and we started down the capability route and the employee resigned as they could see where the process was heading.

Is your MIL reclaiming the maximums she can as a small business?

www.gov.uk/recover-statutory-payments

Correct, length of service is not a viable reason. She has protection and if you are making redundancies she's the last person to be chosen. Be very careful!

@remdog I agree with pp that your MIL needs to do this by following lawful processes.

Short term - check for help with SSP and confirm if employee is eligible for SMP. If not give her an SMP1 duly completed.

Long term - buy in HR help to put in place basic policies regarding sick absence, managing attendance, performance, redundancy, grievance and discipline etc. Your MIL may have inherited policies or may use the ACAS ones.

If the employee sends in fit notes after mat leave and there is an appropriate policy in place they can be referred to Occupational Health who should identify what an employee is and isn’t capable of doing.