Coronavirus National Crisis – Pregnancy and Maternity Rights

Pattinson & Brewer Solicitors – Employment Law Factsheet

Coronavirus National Crisis – Pregnancy and Maternity Rights

The Government has been clear from the start of the current Coronavirus outbreak that it considers pregnant women should be classed as part of the ‘vulnerable’ category. What does this mean and what are your rights if you are a pregnant employee? What if you are currently off work/due to return to work following a period of maternity leave?

I am pregnant – what are my rights?

Public Health England issued some guidance (here) shortly after the Government’s announcement on social distancing, advising that for a period of 12 weeks any pregnant woman should be considered part of the ‘vulnerable’ category and are therefore strongly advised to observe the social distancing measures, including working from home where possible.

The Royal College of Obstetricians and Gynaecologists released some further material (here) advising that whilst the risk to pregnant women of Covid-19 is unknown, a cautious approach is recommended, particularly for women who are 28 weeks pregnant or more.

Therefore, any pregnant woman (particularly those 28 weeks pregnant or more) currently employed in the UK should be following the Government’s social distancing measures which includes working from home where possible.

What if I cannot work from home?

As per current health and safety legislation, all pregnant women should undergo a risk assessment in the workplace, to identify any hazards and ensure a safe working environment. Especially since the outbreak of the Coronavirus, it is more important than ever that employers are following health and safety legislation to ensure the safety of their pregnant employees in the workplace.

As mentioned above, pregnant women should now be observing social distancing measures – which includes working from home where possible. If you cannot work from home, you must be allowed to work in a safe environment (i.e. away from the risk of catching Coronavirus) which includes the social distancing measures (working at least 2 metres away from colleagues, allowing increased hand washing and provision of sanitisers etc). If, following a risk assessment, your employer cannot ensure your work environment is safe and incorporates social distancing measures, you are entitled to be suspended on medical grounds with full pay (section 16(3) Health and Safety at Work Act 1974).

If you are currently pregnant and still in the workplace and you are not social distancing, we strongly advise you speak to your employer about how to ensure your safety at work.

I am on maternity leave/due to return to work following maternity leave – what are my rights?

This is an uncertain time for many employers and employees. If you are currently absent from work due to a period of maternity leave, your rights in respect of maternity leave and pay remain the same.

If you qualify, and are already in receipt of Statutory Maternity Pay (SMP) your employer should continue to pay this. If your employer is struggling to make these payments they can request advance funding from HMRC or alternatively, if your employer has had to close owing to the outbreak, HMRC can pay these monies directly to you.

The government’s Coronavirus Job Retention Scheme also applies to women on maternity leave. Should an employer experience a downturn in work, meaning it may consider having to make redundancies, it may instead choose to ‘furlough’ its employees. This scheme guarantees up to 80% of wages, up to a cap of £2,500 (for more information on furlough please see our previous blog posts).

Women who are on maternity leave can request to be furloughed, but careful consideration needs to be given as to how this change in employment status would impact on your entitlement to take maternity leave. Whilst the furlough scheme could arguably offer a high rate of income than SMP, the only way you can receive remuneration via furlough is to serve notice to end your maternity leave and essentially return to work early.

This may be an option for those women nearing the end of their maternity leave, however if you chose to end your maternity leave early, once the furlough scheme has come to an end you will be expected to return to the workplace immediately and cannot then opt to ‘use’ the remainder of your maternity leave. You may be able to consider shared parental leave at this point, however there are also complex rules governing how this can be taken between you and your partner.

At this time, employers should be maintaining good lines of communication with all employees, especially those who are absent from the workplace due to maternity leave. If you have not yet received any updates from your employer about the current situation, we would recommend trying to contact them as soon as possible.

If you require advice in relation to the above please contact our free helpline on: 0800 3077660.

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