No entitlement to sick pay during maternity leave

In Department of Work and Pensions (DWP) v Sutcliffe the EAT held that an employee certified as sick during her ordinary maternity leave period was not, during this period, entitled to claim any contractual sick pay.

Background

Mrs Sutcliffe's maternity leave was due to start at the beginning of August 2006 but in June of that year she suffered a pregnancy related illness and was certified sick until January the following year. Her employment contract stated that she was entitled to contractual sick pay at full rate for up to six months 'less any maternity allowance received'. As Mrs Sutcliffe had worked for the DWP for less than 26 weeks she only received maternity allowance for the duration of her ordinary maternity leave. She wrote to her employer during her leave and asked that her maternity allowance be made up to full sick pay. The DWP refused her request stating that maternity leave was not sick leave.

Mrs Sutcliffe brought a claim for unlawful deduction of wages and the employment tribunal upheld her claim. It decided that "remuneration" as defined in the Employment Rights Act did not include sick pay and that as the contract stated that sickness absence should be paid less any maternity allowance received she had the right to receive sick pay during her ordinary maternity leave.

The EAT overturned the decision finding that "remuneration" includes sick pay and that the reference to maternity allowance in the contract did not grant the right to sick pay during ordinary maternity leave, as this was clearly excluded in the maternity leave policy.

Impact on employers

This case confirms the position with regards to sick pay for women during their pregnancy, while on maternity leave and after their maternity leave.

During pregnancy and before maternity leave normal sick pay rules apply to women who are absent due to pregnancy related illness. During maternity leave this is replaced with statutory maternity pay and once maternity leave ends the woman is once again entitled to contractual sick pay in the normal way.

It is also worth pointing out that in this case the EAT found that the company's maternity policy which appeared on the intranet and was referred to in her contract was deemed to have been incorporated into Mrs Sutcliffe's employment contract. This was in spite of the fact that she could not view the information, as she did not have access to the intranet.