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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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We have a pregnant employee who was due to go on maternity

Customer Question

We have a pregnant employee who was due to go on maternity leave 1st Aug, on the 19th July she went home sick as it was a really hot day in the office and she said she couldn’t stand the heat. It was last week and the hottest day of the year, she came and said that it was too hot and with only 3 weeks to go until giving birth she wasn’t going to risk her baby as she felt hot and sick. We had no issue with her going home and told her to go and put her feet up. We asked if she could work from home and she said no as she was too sick. The next day she went to the doctor and got signed off sick from the 20th July – 31st Aug which then took her to the start of her maternity leave. Her doctors note says ‘ stress at work, in final stages of pregnancy. Unsuitable work conditions due to excess heat and currently being 37 week gestation’. She emailed saying she was now off sick and expected full pay whilst she was off. We emailed back saying that as she was signed off sick and in the final 3 weeks of pregnancy we will be bringing her maternity leave forward to the 20th July (the date she was signed off sick). She replied saying she was signed off due to unsuitable work conditions as it was 34 degrees (which it wasn’t) and that it was not pregnancy related sickness (even though it states that in her doctors note). We replied back saying that no other member of staff was off work due to the heat (we have 21 staff) and that the conditions were not unsuitable, we have not had any formal complaints from any other member of staff and we have fans in the office. We stated that we understood that she was hot and felt sick due to her pregnancy and that is why we didn’t have a problem with her going home. She has today emailed to say that she has confirmed with other members of staff that it was 34 degrees (it wasn’t and we don’t know who would have confirmed this) and that she disagrees that the working conditions were suitable. She said she was not off sick and felt hot due to her pregnancy but that she was hot and felt sick due to the high temperature in the office and that she wasn’t prepared to work in an environment that could risk the health of herself or her baby due to the fact that high temperatures can bring on early labour. We still feel that she is signed off sick because she is pregnant and still want to bring her maternity leave forward to the 20th as her doctors note says so. If she had come in the next day and said she felt at risk we could have done a risk assessment however she didn’t, also we asked if she could work from home when she left on the 19th and she said she couldn’t. Can we make her take her maternity leave early?? Lastly she has said that because of the above she now wants to take 8 days holiday to cover her sickness period so she gets full pay and she wants to start her maternity on the 1st Aug as planned. We don’t want her to do this as she is signed off sick and now wants to change this to holiday, can she insist?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Before I can look into this further for you, please can you tell me how long she been an employee at your company?

Customer: replied 1 year ago.
18 months
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. Maternity leave can start either on the employee’s chosen date, or automatically on a different date. The automatic start would apply in the following conditions:

· Premature birth, which is not the case here; or

· Absence from work for pregnancy-related reason - if the employee is absent from work "wholly or partly because of pregnancy" after the beginning of the fourth week before the due week, but before the date she has notified, her maternity leave begins automatically on the day after the first day of her absence

In all other circumstances, including where the employee is off sick for a non-pregnancy-related illness, her maternity leave will start on the chosen start date, as notified to the employer.

So the key here is whether the absence is wholly or partly because of her pregnancy. This is a question of fact. You could compare her position to those of others and for example take statements or find evidence that confirms that no one else was affected by the conditions in the office and that the only plausible explanation is that her reaction was exasperated by her pregnancy.

In terms of holidays, she is entitled to ask that she takes her holidays before her ML but as with any other time she is legally required to give you notice that is at least twice as long as the holidays to be taken, in this case 16 days’ notice. At the same time you are entitled to refuse her request by giving her notice equal to the holidays, so 8 days.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.

what she is asking to do is change her being signed off sick by a professional doctor who states the fact that she is 37 weeks pregnant and now convert these 8 days to holiday. We are not happy about doing this as it makes the doctors note irrelevant, which it clearly isn't, just because she wants full pay. Sickness is not a bargaining tool to swap out with holidays when you feel like it and the Director feels he has a responsibility to the importance of the Doctors note, especially as she is pregnant. What is the status here with the employee suddenly deciding that she doesn't now want to be classed as 'off sick' and wants to change this to holiday please? We have no problem with her using her holiday (which we both agreed would be at the end of her maternity leave) but not in this manner and retrospectively.

Expert:  Ben Jones replied 1 year ago.

Hi there, as mentioned if the employee wants to take days off as holidays then under the Working Time Regulations they are required to give you a minimum notice period which is at least twice as long as the holiday to be taken. So if she wants to take 8 days holiday she must submit her request to take these at least 16 days before they are due to be taken. If she gives you the correct notice, you still have the right to reject that request as long as you give her notice equal to at least the holidays to b taken, in this case 8 days. So if she gives you notice 16 days beforehand, you can reject her request up to 8 days beforehand. If she has not given you the correct notice then you can reject her request outright.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Customer: replied 1 year ago.

OK thanks, ***** ***** but legally can he waive the doctors note even if there if enough notice for holiday and disregard the doctors note allowing for this time off to be converted to holiday? Especially when she is pregnant and saying that her illness was of the upmost importance to the health of her and her unborn baby, which now she wants to disregard. The director feels if there are any problems with her or her baby now and he allows her (at his discretion) to take holiday for her sickness period then he has ignored what the doctors note said and he may be responsible for not taking her condition seriously? What is suppose i am saying also is can you be off sick and on holiday at the same time?

Expert:  Ben Jones replied 1 year ago.

Yes you can be off sick and on holiday - often people get SSP for sick pay and that is not enough so they would rather take their holidays instead and get full pay for that period so you are then off sick and on holiday at the same time. It is up to you whether you allow her to do that and if you are unwilling to do so you must rely on the notice retirements I mentioned. Also try not to make it look like your decision is linked to the fact she is pregnant as that will likely amount to discrimination. Hope this clarifies?

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Expert:  Ben Jones replied 12 months ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.