Stat maternity pay. This seems unfair.

[Bubble99]

We own and run a small business with eighteen employees. We only pay stat maternity and sick pay as we are in a business that requires strict staffing numbers (children's daycare nursery) and therefore have to pay temporary staff to cover any absence. We also have only women employees at the moment and three of them are currently on maternity leave. This illustrates why we cannot be more generous.

One of our pregnant employees has been on long term pregnancy-related sick leave (twin pg with intermittent bleeding). She had wanted to come back to work but her doctor would not give written permission that it was safe for her to do so. We do not have any 'light duties' as such and although we could make sure she avoided repeated heavy activities or lifting ( nappy changes, etc) we would need her to be able to quickly lift or handle a toddler in the event of an iminent accident or emergency. This was the sticking point and so she was signed off by her doctor for most of her pregnancy.

She has now started her mat leave and we've realised that as stat mat pay is six weeks pay at 90% of average earnings for the last 8 weeks before mat leave started she will only qualify for mat benefit as she has been paid below the NI threshold whilst on sick pay.

We feel desperately sorry for her, especially as she had been so willing to come back to work. We cannot pay her anything ourselves as we will then set a precedent and are liable to end up being sued in a tribunal in the future if we don't do the same for the next person this happens to.

Has anyone else had any experience of/got any knowledge of this rule? It seems unfair that a person who is genuinely unable to work due to pregnancy, loses their mat pay.

Obv. stat maternity pay then goes to £112 per week after the first 6 weeks. Didn't make that clear .

Could you reinterpret the rules for this case that she will be paid for what she would have earned normally in that time? It would set a precedent, but only if the exact same situation happened again which is unlikely.

I would contact Confederation of Small Businesses for advice or any professional organisation you belong to.

(I thought that the govt subsidised SMP?)

don't you normally bring the mat pay forward in cases like this?

if not it is terribly unfair.

I know that if you are absent because of sickness, it doesn't affect the 'continuous employment' rule but I'm not sure whether that counts for earnings too iyswim

The government will pay her SMP if she qualifies. But she doesn't because of her earnings during the qualifying period ( 8 weeks before when she was on stat sick pay.)

snow. The thing is all but two of our employees are young women of child-bearing age so the chances of it happening again are quite likely. Especially as our work is physical (we are categorised for H&S as between an office and a factory.)

very odd, I was off work from 16 weeks pregnant and got my full 90% for first 6 weeks and then then £112 following that.

Lisa

Hi there, at what stage of her pregnancy did the employee go off sick?

Foxy SMP is based solely on the 'qualifying period.'

SP. Explain how that would work, sounds like a plan.

lisa. Did/does your company pay stat sick pay or full pay while sick?

I think you should take some advice as to whether you could in fact make her some sort of ex-gratia payment (and ask her to keep it between you). I am not sure how any future employee could sue you for treating them differently at a later date. It's not as if any diference in treatment would be due to unlawful discrimination...

yes, there are 2 rules to be eligible - the continuous employment and the earnings rule. I thought that as you don't have to count absence from sickness for continuous employment, you might get away with it for earnings but actually, I can see the phrase in our book now about sick pay counting towards the earnings used.

Sexonlegs (fab name, btw)

She was signed off sick at 12 weeks of pg.

I was on full pay until that ran out and for last 4 weeks was on SSP.

To the letter of the law as you were unable to either make her workplace safe for her or offer her alternativie duties you should have suspended her on full pay until her maternity leave started, rather than her going on the sick.

See here

www.hse.gov.uk/pubns/indg373.pdf

You could backdate this if you wanted to but it would be expensive for you.

Thanks all.

We do use a firm of employment lawyers and we have consulted with them throughout this employees sick leave so I'm surprised to read your post, Sodor.

We would love to be able to deal with things on a case by case basis but employment law doesn't work like this as tribunals look for 'custom and practice.'

We'll see if we can work something out.

Thanks again.

Sorry. Just re read, Sodor.

Yes. If an employee is on long-term sick leave and is no longer 'fit for the job' it is possible to begin the dismissal procedure. We were advised, however, that with pregnancy related sickness we could well lose an 'unfair dismissal' claim.

My first instinct when reading your op was that this sounds as though it was a H&S issue - ie she was signed off because you were unable to accommodate a H&S problem with alternative duties, in which case she should have been paid as normal as this is not her fault - I see islandofsodor has already posted this.

My advice would be that you should be paying her backpay for the time she was off and was only receiving SSP, and should then pay her maternity pay accordingly.

I am surprised you were not advised in these terms by your employment law advisers, is there a possibility they only understood she had been signed off sick and were not aware that this was because she was not able to complete her normal duties and you were unable to find suitable alternative work?

And regarding your last post about long term sick leave and dismissal, you have been correctly advised in that case - you certainly would have lost unfair dismissal and sex discrimination claims if you had attempted to dismiss someone who was off work because of pregnancy-related symptoms - pregnancy related illness must by law be excluded from any usually disciplinary consequences of sickness absence.

I appreciate you are in a tight financial situation, but I would consider very seriously re-reading the information about employers' H&S responsibilities and paying her full pay for the time she was off sick, if, as you say, you think there was a possibility she could have worked if there had been something more suitable for her to do. Here is some more information, see bit about H&S issues, and if you are unable to find suitable alternative work you should suspend on full pay. This may have been Islandofsodor's link.

Thanks for that.

Would we be required to suspend her on full pay if our policy is to pay SSP only? We paid her as 'sick' because her doctor refused to allow her to work and wrote 2 weekly sick notes to certify this.

The thing is, at her grade of staff, there are no other suitable alternative duties.

Bubble it depends. If she is signed off work because she was unable to complete her normal duties - the heavy lifting etc - and you were unable to find her 'light duties', then she should be paid full pay - she is not in that case off 'sick' as such, she is just unable to complete heavy lifting etc duties due to her pregnancy and it's not her fault you were unable to find something suitable - as you said, she wanted to come back.

If she was actually properly ill and was signed off as such regardless of what duties she could have completed - if she was on bed rest or whatever, was not able to come in at all, then she was off 'sick' and you are not obliged to pay her full pay.

I have to say, from what you have said, it sounds as though the doctor decided her normal duties were not appropriate, and on finding that there was nothing else suitable, signed her off work to ensure she got paid SSP, which is of course why you paid her sick pay. I imagine the doctor did not realise that if a pregnant woman is unable to complete her normal duties due to her pregnancy, it is the employer's responsibility to find her something more suitable, or as a last resort, suspend her on full pay if this isn't possible.

Did you complete risk assessments for this woman and identify that the heavy lifting/activity involved in her job would be a H&S concern?

Obviously I don't know all the ins and outs of the situation - that's just what it sounds like from what you have said. My advice would be to have a serious honest think about this, and make a decision about whether she could have worked if you had been able to find her alternative duties.

x-post, I appreciate that there were no other duties, and that's fine, but those are the exceptional circumstances in which you would be required to suspend her on full pay. You would be required to make adjustments to her job if at all possible, if not, find her another job/different work, but if neither is an option, you don't really have a choice. If she is willing and able to come to work but just not doing the active stuff her job normally requires, she should not be penalised financially as a result - she has lost a significant amount of pay and stands to lose a lot of SMP as well, so it's important.

Thanks. Mr Bubble is dealing with her pay so I'll ask him to give the lawyers a call again this afternoon. We have to act on their advice as they would represent us at any tribunals and will pay the damages if we lost, but had followed their advice to the letter.

Nurseries seem to be fairly unique as regards employment law and the firm we use specialise in them. Part of the issue is that we are governed by OFSTED who require that all staff working in nurseries are 'fit to do so.' The situation of a staff member working, albeit light duties, but unable to lift a toddler to safety if required, is problematic.

Do give them a call - you will obviously be able to tell them in full detail about it all which you can't me, and obviously they will know more about nurseries than me as well. That is my reaction from what you have said though, so definitely worth exploring in a bit more detail with your lawyers.
I know what you mean about in your situation it being very difficult to find alternative duties. I would be surprised if there is an exception to the normal rule which means an employee at a nursery would lose out in those circumstances, but your lawyers will be able to advise you, on that and also on whether there is any way for employers like yourselves to recoup any additional cost incurred through suspension on H&S grounds.

Interestingly, employment law is very often based on common sense, so if something 'feels' wrong, it often is. Obviously there are exceptions, but you 'felt' this was wrong and you may be right!

Hi bubble.

Although i can understand you posting on mumsnet to 'think out loud' and to find out what others may have done in the same circumstances, please do not rely on our advice as (big apology to any poster who is a solicitor), the advice may be incorrect or out of date. Please listen to what the law firm tells you.

I hope you can reach a conclusion that is legal and fair to both sides (fingers crossed).

(Sorry to sound so 'official'.)