Employment Lawyers: Entitlement To Sick Pay During Maternity Leave

The Employment Appeal Tribunal (EAT) has held (Department for Work and Pensions v Sutcliffe) that a woman who was certified as sick during her ordinary maternity leave was not entitled to be paid contractual sick pay during that period.

Mrs Sutcliffe started working for the Department for Work and Pensions (DWP) in April 2006. She told her employer that she was pregnant and that her baby was due at the end of August. Shortly after she began her job she went off sick owing to a pregnancy-related complication. She was paid full sick pay, based on her annual salary, during June and July. In the event, she continued to be certificated sick until at least January 2007. Mrs Sutcliffe’s maternity leave commenced on 1 August 2006. From that date, her contractual sick pay ceased and she received ordinary maternity allowance. She was not entitled to statutory maternity pay as she did not have the requisite 26 weeks’ service needed to qualify.

Mrs Sutcliffe claimed that the failure to pay her sick pay while she was absent on maternity leave was an unlawful deduction of wages. The Employment Tribunal upheld her claim. The DWP appealed against the decision.

The Employment Rights Act 1996 (ERA), in conjunction with the Maternity and Parental Leave etc. Regulations 1999, provides 26 weeks of ordinary maternity leave. The ERA states that during ordinary maternity leave a woman is entitled to the benefit of the terms and conditions of employment which would have applied had she not been absent, but these do not include remuneration. The EAT found that sick pay is remuneration for the purposes of the ERA.

The EAT found that the DWP’s maternity policy reflected the statutory position as regards remuneration and that this was incorporated into Mrs Sutcliffe’s contract of employment. The fact that she did not have access to the policy after she went off sick did not negate this. The DWP had done all it could to make her aware of the policy.

As remuneration includes sick pay, Mrs Sutcliffe was not entitled to receive this during her period of maternity leave and so failing to pay it did not constitute unlawful deduction of wages.

Law Firm Pinder Reaux and Associates says, “During maternity leave, ordinary pay is replaced by the statutory arrangements for maternity pay. It would have been open to the employee in this case to give notice of early termination of her maternity leave so that she could then claim sick pay, but she did not do so.”

Pinder Reaux & Associates