I'd say she's probably OK. In order to qualify as engaged in qualifying remunerative work (lets call it EQRM!) whilst on maternity leave under Reg 5(2), you must have been EQRM prior to your maternity leave. She was off sick though. But under Reg 6(2) you can be treated as EQRM whilst sick as long as you were in work prior to that. Question is, is "treated as EQRM" good enough for Reg 5(3) purposes? or must it be actually EQRM? Doesn't say "actually" so I'm inclined to think "treated as" will do. Then again your non-disclosure advice sounds good to me. If IR later on dispute entitlement during maternity period that will be appealable.
-John Eames
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