# pregnancy related sick leave new ruling.



## Bamhan (9 Nov 2005)

Does anyone know anything about the new guidelines established since that woman lost her case against the health board re treating pregnancy related illlness differently do normal illness.
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## Miner (11 Nov 2005)

Assuming you mean the NWHB v McKenna case, I'm not sure that any new guidelines were established.  The Maternity Leave - Maternity Protection Act 1994 was amended in 2004 so i can't see them making any further amendments for a while.


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## Bamhan (11 Nov 2005)

Yes I do mean that case and from my understandign it means that you can no longer distinguish between pregnancy related illness and normal illness in relations to the amount of paid sick leave you are entitled to.
My specific query if anyone can point me in the right direction, other than ringing my solicitor which it looks like I will have to do anyway is, if you were paid for sick leave which your employers were treating as pregnancy related illness and therefore paid you are they within their rights to now ask you to pay this money back due to the ruling on the McKenna case.


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## Ms X (11 Nov 2005)

If your sick leave policy specifies that pregnancy related sickness was fully paid and this policy formed part of your contract of employment, they may be trying to unilaterally changing the terms and conditions of your employment. (They need your agreement to do this)

Thats my 2 cents. But you best check it out further.


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## CMCR (18 Nov 2005)

The EU Ruling was that it is not discriminatory within the meaning of EU legislation to treat a pregnancy-related illness the same as any other illness. 

The McKenna case claimed discrimination contrary to Directive 76/207. The Court found that a sick leave scheme that treats female workers suffering from a pregnancy-related illness and other workers suffering from any illness unrelated to pregnancy come within the scope of Article 141 EC etc relating to equal pay for men and women. 

The Court found the rule of a sick leave scheme that provides a reduction in pay for female workers absent prior to maternity leave due to pregnancy-related illness and male workers absent through any other illness is not discriminatory if it applies to both equally. 

I've checked this situaiton also with the Employment Rights Unit at the Dept. Enterprise, Trade and Employment. No employer in Ireland is legally obliged to pay staff while on sick leave and there is no legislation dealing with sick leave. 

If you were on pregnancy-related sick leave from work and your contract of employment (and custom and practice in the workplace) does not provide for pay while off sick, then you have been over-paid and you are required to repay the overpayment. Deductions from salary by the employer are governed by [broken link removed]. Similarly, if any other employee was off work sick and there is no provision for paid sick leave, then they would be required to re-pay back this money too. 

However, if your contract of employment specifically provides that a portion of sick leave is paid by the employer, you may have grounds for objecting to being obliged to repay the full amount. 

The Court ruling in the McKenna case is available by searching the ECJ website here: [broken link removed]

Without further information as to what exactly is the policy in your workplace, it is impossible to give you a definitive response as to whether or not your employer is correct to demand such a repayment. The Employment Rights Unit are contactable at 1890 201 615. 

I hope the above has been of assistance, however.


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## Bamhan (18 Nov 2005)

Yes many thnaks for all the time and effort you took in replying, much appreaciated.


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