Pregnancy-related illness

Q. Is our employer allowed to implement the sickness absence policy for a pregnant employee? One of our members has had a number of short absences because of illness related to her pregnancy. Under the sickness procedure, her absences would trigger the disciplinary procedure. What is her legal position?

A. Any action taken against a woman on the grounds of a pregnancy-related illness, whether this happens while she is at work or while she is on maternity leave, is unlawful. This principle comes from the European Court of Justice in the case of Brown v Rentokil Ltd {1998] IRLR 445. The action will automatically amount to direct sex discrimination, and there is no need to show a male comparator (unless the illness occurs after the end of the maternity leave period).

The Employment Appeal Tribunal has confirmed that, if disciplinary action is taken because of a poor attendance record, absences caused by pregnancy should be ignored (Nottingham City Council v Redmond UKEAT/876/01).