Sick pay issues

[SpanielFace]

Hi, I wondered if anyone could help me with some advice for my friend.

We are both professionals employed by a small business with a single owner. Neither of us have contracts - we both asked multiple times but they were never provided, and after a while I stopped asking - I was under the impression that when you had worked for a year, you had a verbal contract based on your working hours and conditions. I realise I was a little naive and probably should have pushed more.

I am currently on maternity leave, and have had no major issues with my boss, although he was decidedly unsympathetic to the fact that I needed to make some adjustments to the way I worked in later pregnancy e.g. needing a chair rather than standing up all day. I also came under a lot of pressure not to start my maternity leave early when it became apparent I wasn't coping with the strains of the job - however I was signed off at 35 weeks with raised blood pressure, which put an end to any arguments, and I started my maternity leave straight away.

My colleague is 12 weeks pregnant, and has had a difficult first trimester with a lot of sickness. She has taken 6 days off sick in the last month. Previous to becoming pregnant, she has had days off sick for a few reasons, and has always been paid. I have also had paid sick days in the past. Our employer has now said that she is not entitled to sick pay for pregnancy related complications, and has not paid her for those days. As well as this, he forced her to take a further 3 sick days the previous month as holiday.

Is he allowed to do this? I realise her position is difficult as we don't have written contracts. But if he has previously paid for sick leave, can he then refuse to continue to do so now she is pregnant, or is this discrimination?

[MissKeithLemon]

He must pay SSP rates as minimum. So he could withold pay for three waiting days (usual work days) and then pay her at SSP rates only.
The fact that it is pregnancy related sickness makes no difference at this stage of her pregnancy.

Also the fact that you have received full pay in the past is probably not worth a jot without an actual contract stating terms and conditions as such.
It would be her word against his in the event of further escalation or mediation etc.

What he cannot do is discriminate against her due to her pregnancy of course.

She could call ACAS for advice tailored to her own situation and I would suggest she does.

Finally - as devils advocate here - the employer is probably ruing the day he hired two people who have now both become pregnant at around the same time. His losses could be catastrophic to a very small or fledgling business.
Try to keep in touch and keep communications open and honest if you plan to return, or even if not.

[Lougle]

"Our employer has now said that she is not entitled to sick pay for pregnancy related complications, and has not paid her for those days."

How did he say this? Was it verbal or in writing? It might be helpful to send an email confirming the situation.

On the face of it, if he has previously paid sick pay or absences (were these annotated on your/her payslips?) and is specifically refusing to pay for pregnancy related illness, then she could have a claim for unfair treatment on grounds of pregnancy.

[MissKeithLemon]

True Lougle. I had taken the OP as meaning that they had been paid normally and as usual when off sick previously (head still on another thread had just read through I think ).

If there is documentation that sickness absence has been paid previously then he will be making a big mistake in not continuing, as per pregnancy discrimination rules. Custom and practice would most likely overrule any lack of clarity a contract would have given in that case.

I'd also assumed that no employer in that land would be stupid enough as to put something like she is not entitled to sick pay for pregnancy related complications, and has not paid her for those days. in a non verbal communication of any sort. I may well be wrong though

[SpanielFace]

I'm not sure if it was verbal or written, but I would imagine verbal. I probably should have found out the specifics before posting, I'm not at work at the moment but have had a series of upset texts from my friend!

But, if he's paid for sick days before, but hasn't this time, so long as he's not specifically stated that it's because she is pregnant then that is legal?

MissKeithLemon - I know, I feel bad as well. There is a third employee who is pregnant as well. This is in a business that only employs 10 people, so I know it's a big strain. It's a well-established business but times are hard for everyone at the moment, and I'm very aware that this can't help.

[Lougle]

Well, at a tribunal it would come down to a balance of probabilities. So it would be a case of your friend demonstrating that it was a change from usual custom and that the only other change was the pregnancy. The employer would need to justify the change to show that the pregnancy was insignificant in the decision. The verdict, in the absence of written evidence, would be what the tribunal panel felt was most credible.

[MissKeithLemon]

If there are another seven employees you should find out usual practice for all of them. If he is paying others full pay for sickness absence but only SSP to his pregnant employees, then I'd think he may well already be in breach of regulations.
Also, if anyone else with a comparable position actually does have a contract it would be worth looking at for any specific clauses re sickness and/or maternity. If there are ten employees in total he doesn't class a small employer in terms of employment law - so get checking!
I had also, wrongly, assumed from your OP that the two of you were his only employees. Any sympathy I had for him has vanished. He needs to get his head out of his arse and treat his pregnant employees fairly.