What’s the answer? Sickness and maternity

Annie Hayes

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What’s the answer? Sickness and maternity

By Annie Hayes

Fiona Fritz gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Nadia Hoosen, senior solicitor, Clarkslegal LLP on the considerations of managing a return to work request from an employee suffering with post natal depression.

The question:
”I have a member of staff due to return to work after six months statutory maternity leave, who is suffering from post natal depression. She has indicated to me that she does not wish to take her additional maternity leave, but is clearly not well enough to return to work. Indeed, her GP has told her she should not come back.

”I want to help and support this lady as much as I can, but I am wary of getting into a difficult long term sickness situation. Any advice on what to do here?”

Fiona Fritz

The answers:
Helen Badger, employment law expert, Browne Jacobson

From your question there appears to be two possible scenarios that could occur from this situation. Firstly the employee may return to work, despite appearing not well enough to do so, or she may accept her GPs advice and take a period of sick leave at the end of her Ordinary Maternity Leave.

If it is the case that the employee wants to return when, in your view, she is not well enough, you need to meet with her before her return and explain that the company does not expect this of her and it is ultimately her decision. If she is insistent that she wants to return but you still believe this is not appropriate, then you need to ask for her consent to contact her GP and ask him to confirm whether she is fit to return.

If the GP says that she isn’t fit, then you would need to meet again with her, explain this to her and try to encourage her to take some time off. If she absolutely refuses then you would be within your rights to suspend her on medical grounds until such time as she is fit enough to return. This suspension would need to be on full pay.

If the employee agrees that she is unfit to return to work after her Ordinary Maternity Leave, then she should be treated in the same way as any other employee absent on sick leave. If it is the employee’s choice not to take additional, unpaid maternity leave then the employer cannot force her to do so. The employee would be required to provide medical certificates in the normal way and receive such sick pay as is provided for in the contract or usually given in practice by the employer. Unfortunately, this means that you could be getting into a long term sickness situation and you would have to manage that situation accordingly.

It is worth mentioning that, whilst employees are protected from dismissal and suffering any other detriment as a result of pregnancy related illnesses, this protection lasts only until the end of the maternity leave period. If the employee is not going to take her additional maternity leave there is no automatic protection afforded to her, after the end of her ordinary maternity leave, despite the fact that her illness is pregnancy related. Provided the manner in which you treat this employee and manage her absence is the same manner in which you would treat a man, absent on sick leave, there should be no discrimination.

Helen can be contacted at: hbadger@brownejacobson.com

Nadia Hoosen, senior solicitor, Clarkslegal LLP

The area of maternity law is both grey and complex and there are no clear cut answers.

From a health and safety perspective, if her doctor has stated that she is not fit to return to work, and you permit her return, you could place yourself in a difficult position if something goes wrong. You could also find yourself having to deal with both health and performance issues if she returned prematurely, as a result of such a condition.

In order to consider her return to work, you will need to get sufficient medical evidence and/or possibly ask her doctor to confirm that she can return to work. Until you have her doctor’s say so, you will be taking a huge risk. You could also consider asking your employee to undergo an independent medical examination by an occupational health adviser of your choice, so that you can show that you went the extra mile in seeking a second opinion as to whether she can return to work.

If you continued to refuse her return to work and she really wanted to return, there is a possibility she could argue that it is direct sex discrimination, because you would not have treated a male employee in the same way. Arguably, if a male employee was signed off work and you were advised by his doctor that he was not fit to return, you would refuse his return as well, which means you can show that there was no difference in treatment. The difficulty always is that pregnancy and pregnancy related illnesses are unique to women and therefore you cannot always use such a simple male comparison.

If this became a long term issue and you wished to consider dismissal, this must also be carefully considered.

Discrimination against a woman because of illness that is pregnancy-related is in principle unlawful discrimination. However, as with many maternity issues there have been conflicting decisions made by the courts, so it is always advisable to take a cautious approach, and always seek legal advice.

There was a European Court of Justice case in 1998 in which it was argued that if a pregnant woman is dismissed because of incapacity arising from an illness that is pregnancy-related, which arose only after the end of her maternity leave, the employer may be able to show no discrimination by showing that an incapacitated man would have been treated in the same way.

However in the same year of 1998, there was a case in Employment Appeals Tribunal case (which is a lower court), in which a woman was dismissed by reason of her post-natal depression (an illness which had made it impossible for her to return to work after pregnancy leave) and she was found to have been both unfairly dismissed for pregnancy-related dismissals and, also, the victim of unlawful sex discrimination. In this case the courts said,

“when a woman is dismissed by reason of an illness which is related to having given birth, or being pregnant, or both, which illness arises or emerges during the course of the maternity leave period albeit the dismissal takes place after the expiry of that period, it is still a discriminatory dismissal against a female, upon the basis that at the time of dismissal she suffered from an illness from which a man could not suffer, and thus she is being treated differently from her male counterparts. “

Given the Courts views, you should seek medical advice in the first instance and if it becomes a long term issue, ensure that you have followed thorough procedures and have sought specific legal advice.

Nadia Hoosen can be contacted at nhoosen@clarkslegal.com

HRZone highly recommends that any answers are taken as a starting point for guidance only.

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