Pregnancy, maternity and work during the Covid-19 crisis

Pregnancy can suppress the immune system and so extra precautions must be taken.  Workplace guidance needs to be clear that anyone who is pregnant should not be working on the front line or mixing with the general public during this crisis.  This crisis has seen the death of pregnant workers from Covid-19.  Systemic racism, the lack of PPE and the dereliction of care led to these deaths and Trade Unions are leading the campaign for the protection of pregnant workers. 

Issues facing pregnant workers

Unions have seen that some employers have been furloughing pregnant women or sending them home on Statutory Sick Pay (SSP).  This is in breach of women’s rights under health and safety law.  Where a risk has been identified, in this case exposure to coronavirus, the employer must take reasonable action such as altering working conditions or hours of work if this will avoid exposure to the risk.

If it is not reasonable to alter working conditions or hours of work, or if it would not avoid the risk (in this case exposure to coronavirus) then the employer is required to  suspend the employee from work on full pay for so long as is necessary to avoid such risk. This provision is set out in the Employment Rights Act 1996.

Unions are helping thousands of pregnant women, some of the issues raised have included:

• Pregnant women are entitled to receive 100% of their normal pay if they cannot work on health and safety grounds but some employers have tried to pay pregnant women 80% of their average earnings or just SSP instead. 
• Women are losing out on pay now and in most cases wont then qualify for Statutory Maternity Pay (SMP) as their earnings will be too low during their qualifying period.
• Whilst maternity rights should not be affected by being on furlough, Trade Union members have reported that they have seen examples where women have been forced to start their maternity leave early or they have received 80% of their maternity pay, instead of the full amount they are entitled to.   Pregnant workers are entitled to the same maternity pay that they were expecting, even if they have been furloughed.
• Pregnant workers in the private and third sector and key workers have reported feeling particularly discriminated against.  Issues include a lack of PPE to protect them, requests to work at home denied or being forced to take decisions that disproportionately affect them financially.

Rights of pregnant workers

Am I protected from unfair treatment, dismissal and redundancy?

You’re protected by law against unfair treatment and dismissal if it’s because of your pregnancy and maternity, no matter how long you’ve worked for your employer.

This means if you’re dismissed while pregnant or on maternity leave, your employer must put the reason for your dismissal in writing.

If your dismissal can be linked to your pregnancy or maternity, you could claim unfair dismissal and discrimination at an employment tribunal.

You should not be unfairly selected for furloughing or redundancy while pregnant or on maternity leave.

If you are made redundant while you are on maternity leave, you must be offered any suitable alternative vacancy first – in preference to other redundant employees. If your employer does not do this, your dismissal can be automatically unfair. If you are made redundant before going on maternity leave you should be treated the same as your colleagues. If redundancy decisions are made because of your pregnancy or pregnancy related sickness, this would be unlawful pregnancy discrimination.

If you are a trade union member, to talk to your workplace rep as soon as possible. Your other rights are not affected. For a list of them, please see the ACAS website.

Access the ACAS website.

What your employer should do

You may be at high risk of contracting coronavirus if you are pregnant.  This means that although you are no more likely to contract the virus than the general population, pregnancy in a small proportion of women can alter how your body handles virus infections.

Your midwife or healthcare team can provide you with the latest advice around attending routine antenatal appointments. 
There is a legal framework that employers must act within regarding pregnant employees and breastfeeding mothers.
Employers have a legal obligation to assess the workplace risks for pregnant employees and their unborn children, and breastfeeding mothers who have returned to work.

They must keep these risks under review as circumstances change and as pregnancy progresses, if applicable. They should follow these four steps if risks, such as exposure to Covid-19, are identified:

1. They must try to remove or prevent your exposure to risks.
2. If that is not possible, they should temporarily adjust your working conditions to allow you to work from home.
3. If that is not possible, you should be offered suitable alternative employment at the same rate of pay if available.
4. If none of this is possible, they must suspend you from work on full pay for as long as necessary to protect your health and safety or that of your baby. Your full pay should be based on your usual earnings, not pay based on your contractual hours.

If there is a health and safety risk which prevents you from carrying out your role and you cannot be redeployed, you should be suspended on 100% of your usual pay.
If however you are furloughed because there is no specific health and safety risk but your employer is affected for example by a lack of demand or through carrying out non-essential work, you should be furloughed on the same terms as other non-pregnant colleagues.