Where a pregnant employee who is off sick with a pregnancy-related illness has used up her company sick pay entitlement is there any obligation on the employer to pay her at her normal rate of pay?
Following North Western Health Board v Margaret McKenna Case C-191/03 ECJ, it would seem that there is no obligation on an employer to pay an employee at her normal rate when she is off sick with a pregnancy-related illness if she has used up her sick pay entitlement. The European Court of Justice ruled that an employer is entitled to treat an employee's incapacity for work due to a pregnancy-related illness in the same way as incapacity for work caused by any other illness, subject to two conditions. A reduction to a female employee's pay due to pregnancy-related sickness absence will not be unlawful provided that the employee is treated in the same way as an absent male employee would be treated, and "provided that the amount of pay made is not so low as to undermine the objective of protecting pregnant workers". This means that the employee's pay cannot be reduced to zero if her sickness absence is pregnancy related and she must be paid a minimum level of income. There is no minimum level of income specified in statute, but in an earlier case (Gillespie and others v Northern Health and Social Services Board and others(No.2)  IRLR 410 NICA) it was held that an income equivalent to statutory sick pay would be sufficient to satisfy the minimum income requirement in these circumstances.