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Your rights if you are ill during or after maternity leave

Last updated: 9 Apr 2021

This article provides information on what happens if you are ill during and after your maternity leave.

Illness during maternity leave

If you are entitled to Statutory Maternity Pay (SMP) or Maternity Allowance (MA), you cannot get Statutory Sick Pay (SSP) during your 39 week maternity pay period. If you do not qualify for SMP or MA, are no eligible for SSP for the first 18 weeks.

You will only qualify for SSP if your period of sickness begins after the end of your SMP or MA pay period. You will also need to earn at least £120 a week on average in the eight weeks immediately before your period of sickness begins. Contractual maternity pay and SMP count as earnings, but not MA.

In most cases you will only be able to claim SSP once your maternity leave has ended. The SSP Regulations state that in order to qualify for SSP you must be in ‘gainful employment’. Although you are still counted as being an employee during maternity leave, it is unlikely you will be treated as being in ‘gainful employment’ during unpaid maternity leave.

Remember, if you are off work with a pregnancy related illness in the last four weeks of pregnancy, your employer can move you onto maternity leave and SMP instead of SSP.  If they decide not to do this, they could still pay you contractual sick pay, but there would be no SSP included in the amount.

If you are prevented from claiming SSP outside the maternity pay period, you may be able to claim Employment and Support Allowance or Universal Credit instead.

Illness after maternity leave

If you are sick after maternity leave, you should follow your employer’s normal sickness procedures. If you are off sick for a long time, it is potentially fair for your employer to dismiss you because you are incapable of doing your job. However, the employer must act fairly and comply with all the normal rules for making a fair dismissal, and in particular, must not:

  • Take into account absences due to pregnancy (including pregnancy related illness) and absence due to maternity leave.
  • Treat you less favourably than they would treat a man who is absent from work for the same length of time due to sickness.

What if I am sick with postnatal depression?

Postnatal depression is an illness like any other and should not be treated any differently by your employer. 10-15% of women develop post natal depression, don’t hesitate to ask for help if it happens to you. There are organisations who can help and advise.

All of the rights around sickness apply to post natal depression, and, if it is likely to last a year or more you may also have disability discrimination rights under the Equality Act. See here for our tips on returning to work after post-natal depression.  You will also find more information on disability discrimination on the Equality and Human Rights Commission website.

Can I go back to work on a part-time basis?

It is sometimes really useful to organise a flexible or phased return to work. It can be quite difficult to determine what exactly you need and what hours you should ask for, we have a step by step guide to help you. And we have a detailed advice page setting out how and when to apply and what to do if your request is refused. 

Although there is no absolute right to work flexibly or reduced hours, if you need to work flexibly because of caring responsibilities, you should not have your request unreasonably refused by your employer.

If you meet the definition of a disabled person under the Equality Act, your employer will be under a duty to make reasonable adjustments to your work and you may be able to argue that the flexible/phased return is a reasonable adjustment.

Statutory Sick Pay

Statutory Sick Pay (SSP) is a non means-tested benefit, which is paid through your salary. If you are entitled to it, your employer must pay you SSP.

To get SSP, you must:

  1. be an employee, or an employed worker, such as an agency worker,
  2. have earned on average at least the lower earnings limit for National Insurance in the eight weeks prior to the last pay day before your incapacity to work, and
  3. not be receiving SMP or MA (as set out above).

You do not get SSP for the first three days you are off sick, but you might get contractual sick pay for these days. SSP’s rate can be paid for periods of less than a week: it is a daily benefit. It is payable for 196 days (28 weeks).

You must be in a “period of incapacity for work”, which means that you must be too ill to work for four or more days in a row. These include days when you do not normally work, for example, the weekend. 

Periods of illness separated by eight weeks or less can be linked so once you have qualified, if you then went back to work for a bit, you would not have to wait another three days in the next period of incapacity before you claimed.

Usually, after 7 days of absence, your employer will ask you to provide a medical certificate from a doctor. It is for your employer to decide if you are incapable of work, in doing this he may take advice from a company doctor, your GP, or, in rare cases the HMRC Medical Service.

This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.

We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.