Sick and pregnant
We have a pregnant employee (20 weeks) who has been off sick with stress, which she claims is work -related. We sent her to see our Occupational Health (OH) Department and the adviser recommended that we allow her to return to work for half-days for the next two weeks. She came in this morning (Monday) and reminded her boss that she would be going at lunchtime. Her boss said “Oh no you are not” and” I have not had time to read the OH report”. She then asked the HR Department who also claimed not to have had time to consider this report despite the fact that it had been emailed to them and the line manager last Wednesday. She has sent an email to both saying she will be going home at lunchtime. I have told her that if she does, she may be disciplined for disobeying an instruction. Does it make any difference that she raised a grievance about her treatment during her pregnancy, but dropped it?
You have two serious risks here, the first being that she will go sick again and you may not get to see her before she goes on maternity leave. The second risks are legal i.e. a serious claim for sex discrimination, discrimination on the grounds of pregnancy and constructive dismissal. There is also a very real risk that there will be a Victimisation claim (because she raised a complaint about discrimination) and just possibly a claim about harassment. Ignoring the OH report either looks lazy or malicious and they have done not anything to say they have good reason to dispute the advice of the OH Adviser. Doing so now will just make them look churlish.
The sensible thing to do would be to allow her to go home and then invite her to a meeting tomorrow to discuss the detail of what adjustments you can and cannot reasonably make to help her not only during the next couple of weeks but also beyond. You should be basing this on the Risk Assessment you did when she announced her pregnancy but also on the advice of the OH professional. Assuming you have not completely alienated the OH Department you could invite them to that meeting. Continuing with a belligerent approach is very unlikely to work and is likely to further reinforce any claim(s) that she makes.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.
