Sick Pay Whilst On Maternity Leave

A woman started work at the Department for Work and Pensions on 18 April 2006. The following month she told them that she was pregnant and that she intended to begin her maternity leave on 1 August 2006. Unfortunately, on 2 June 2006 she became too ill to work, with pregnancy related complications. She remained too ill to work until 2 January 2007.

Under her contract of employment, the employee was entitled to sick pay at her full rate of pay for up to six months and after that she was entitled to half pay.

She was paid normally from 2 June until 1 August when she had said she wanted to start her maternity leave. She asked DWP to continue paying her sick pay after 1 August on the basis that she was contractually entitled to a six months’ full sick pay. DWP refused and she complained to an Employment Tribunal that they had made an unlawful deduction from her wages.

She won her case before the Employment Tribunal and DWP appealed. The legal position is that a woman taking what is called ‘Ordinary Maternity Leave’ (which is six months) is entitled to benefit from the terms and conditions of her employment contract except the right to “remuneration”. Instead, depending on her length of service, she may be entitled to Statutory Maternity Pay or a Maternity Allowance.

So the question for the Employment Appeal Tribunal was this: is sick pay remuneration?

The question was easily answered by the Appeal Tribunal. Sick pay is remuneration and therefore she was not entitled to it while taking maternity leave. It is clear however, that as soon as maternity leave ends, a woman who is off sick is entitled to any contractual sick pay in the normal way. A woman can decide to end her maternity leave early by giving eight weeks’ notice that she is going to return to work but if this was done with the intention of claming contractual sick pay, it could be a risky policy because she might get better and then have to come back to work!

For more information or advice, contact Jon Loney

Published 05/02/2008. The author of this article is Jon Loney