Pregnancy, Maternity and furlough rights during Covid-19.

17th April 2020

This blog was last updated on 25 January 2021.

At present, government guidance advises that all pregnant women, including those with underlying health conditions, should be working from home where possible, avoiding public transport and avoiding social contact where possible.

Pregnancy and maternity are protected characteristics, and therefore you are entitled not to be subject to any detriment or discrimination because of this characteristic.

Pregnant women are included in the list of people at moderate risk (clinically vulnerable). The Joint statement from The Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the Faculty of Occupational Medicine document, on Occupational Health advice for employers and pregnant women during the COVID-19 pandemic (9/9/20) states that:

“It is important to note that:

Pregnant women of any gestation are at no more risk of contracting the virus than any other non-pregnant person who is in similar health
For those women who are 28 weeks pregnant and beyond, there is an increased risk of becoming severely ill should you contract COVID-19 (this is true of any viral illness contracted, such as flu).

Here are some of the frequently asked questions coming through our FREE advice line. It’s still open, so if we don’t cover what you are looking for here just email us coronavirus@thrivelaw.co.uk and we’ll be happy to assist you. We also have another frequently asked questions page for general coronavirus queries; that also might be able to help you. Find our blog on everything you need to know about furlough here.

I am pregnant but still being told to come into work, is there anything I can do?

There is no absolute right to work from home if an employee is 28 weeks pregnant and beyond, but the Joint Statement advises that “social distancing is particularly important for all pregnant women who are 28 weeks and beyond, in order to lessen their risk of contracting the virus.”

Employers have a responsibility to protect the health and safety of pregnant workers under the Management of Health and Safety at Work Regulations 1999. Therefore, your employer should be conducting a risk assessment for you, regardless of the current crisis. This can be requested at any stage of pregnancy and should identify the risks to you as a pregnant person, but specifically, this should take into account the current pandemic. The risks presented to pregnant workers travelling to and from work ought also to be considered.

If reasonable arrangements to ensure you are working in a safe environment away from others are not possible in the workplace, your employer should provide suitable alternative work e.g. working from home, where possible.

However, it is understandable that this is not possible for everyone. If there are no suitable alternatives, and it’s unsafe for you to work in your normal place of work, then your employer can suspend you on full pay.

Where a risk assessment is conducted and it’s considered low risk for you to be at work your employer can request you attend work. You should ask for a copy of the risk assessment and review this, to check that you agree with the conclusions. If having reviewed the assessment, you do not want to attend work you should agree to leave (either unpaid or annual leave).

Alternatively, your employer can put you on furlough and claim 80% of your wages via the Coronavirus Job Retention Scheme, meaning you would have to remain at home, not working, but still receive some income, and the employer is no worse off as they can recoup this from HMRC.

You may have a claim for unlawful deduction of wages and/or pregnancy discrimination if there is a risk of infection at your place of work and your employer fails to take action or forces you to come to work or demands that you are on unpaid leave. If this has happened to you, you should contact us directly.

Where there is a real risk to your health and safety, and you suffer a detriment as a result you may also have a further claim here.

What steps should my employer take to reduce risk at work?

If there are risks, an employer must take reasonable action to remove the risks by such things as:

Allowing home working
Redeployment to a safer site
Limiting interaction with others
Adjusting your workload by for example not requiring attendance at meetings
Flexible working
Issuing PPE
Addressing issues of stress
Addressing issues to do with public transport by for example staggering start and finish times
Suspension on full pay of there is no reasonable alternative work available
Working from home from 28 weeks’ pregnant
Delivering live lessons
Completing administrative tasks
Reducing the contact time that teachers have with students
Working with small groups
Improving ventilation

The term “reasonable action” will depend on all the circumstances and gives little certainty to the pregnant worker in terms of what action they can actually expect from their employer.

Can I be on furlough as well as, or instead of maternity leave?

The government has stated that you can be on maternity leave and furlough at the same time, in order for employers to recoup the costs of occupational maternity pay. However, if you choose to be on maternity leave you are only entitled to your statutory maternity pay.

If you want to receive 80% of pay on furlough you will need to give the notice to end your maternity leave; this is a minimum of 2 weeks.

Please be aware that after April 2021, the furlough scheme could end at any time and if you have given the notice to end your maternity leave you cannot go back onto maternity leave at a later date. Therefore, realistically this option is probably better for those near the end of their maternity leave.

Can I be dismissed for refusing to come into work?

You should engage with your employer and agree on annual leave, unpaid leave or furlough rather than simply not attending work, where you can’t work from home.

Your employer could discipline and dismiss you if you are absent without authorisation.

However, if you have to leave work due to a serious and imminent risk to your health and safety, you are protected and should not be disciplined or dismissed or suffer a loss of pay as a result. Suspension of a pregnant worker on health and safety grounds is a legal requirement under Regulation 16(3) of the Management of Health and Safety at Work Regulations 1999 if the risks to her health and safety cannot be averted during the Pandemic.

The pregnant worker, when faced with a dangerous working environment which cannot reasonably be averted, has the right not to suffer detriment if they leave, or refuse to attend, their place of work (or take other appropriate steps) in circumstances where they reasonably believe there is a risk of being exposed to serious and imminent danger (section 44 of the Employment Rights Act 1996).

My maternity leave is due to finish during April/May, but schools are still closed so I cannot start back at work yet. What can I do?

In this case, we would also advise that you ask your employer if you can be placed on furlough. If your colleagues are already on furlough, your employer should most definitely consider you. If furlough is refused because you have been on maternity leave, this could amount to maternity discrimination.

In terms of those employees with caring responsibilities, the government has stated that where those employees who are unable to work because they have caring responsibilities resulting from coronavirus, are now eligible to be furloughed. For more information on this specific point, please click here.

If I am on unpaid maternity leave can I move to furlough when it is over?

Government guidance on furlough states that it is now available to any employee on ‘unpaid leave.’

It may be discrimination to refuse furlough because a woman has taken maternity leave and maternity is also a statutory right. Therefore, your employer should place you on furlough, where possible, if they are furloughing other employees. However, furlough is optional so if an employer is choosing not to furlough anyone, there is in their remit and there are no real actions an employee can take in response or force this. When placed on furlough you are also entitled to your normal salary, not that of maternity leave or unpaid maternity leave.

See our blog on furlough when considering how much you will be paid.

How do you calculate maternity pay during the pandemic?

The normal rules on qualifying for Statutory Maternity Pay (SMP) still apply during the pandemic.

If someone’s qualifying weeks fall within the time of furlough, their 90% would be calculated from their furloughed rate; this might be something for an employee to bear in mind when accepting a furlough arrangement.

The flat rate of SMP is £148.68 pw up to 4^th April 2021 and £151.20 pw from 5^th April 2021 (or 90% of your average earnings if they are less).

My employer has furloughed everyone and is paying them only 80% of normal pay. They have now started paying my SMP at 80% of the normal rate. Is that right?

No, your employer must pay your SMP in full. The first six weeks of your SMP is based on your average weekly earnings in the calculation period for SMP (approx. weeks 18 to 26 of your pregnancy). For the next 33 weeks, your SMP must be paid at the statutory (legal) rate of £148.68 per week (up to 4^th April 2021) and £151.20 per week from 5^th April 2021. If your average weekly earnings are less than the statutory rate you will get 90% of your average weekly earnings throughout your SMP period.

Your employer can claim reimbursement for the SMP from HMRC: https://www.gov.uk/recover-statutory-payments. Your employer can get advice on paying and reclaiming SMP from the HMRC Employers Helpline on 0300 200 3200.

If your employer is unable to pay your SMP, they can request advance funding from HMRC: https://www.gov.uk/recover-statutory-payments/if-you-cant-afford-to-make-payments

If your employer does not pay your SMP in full you can claim it from the HMRC Statutory Payments Disputes Team on 0300 0560 630. You should tell your employer you are contacting HMRC in advance as this may prompt them to pay your SMP correctly.

I am on maternity leave and only getting SMP should I be paid 80% of my normal salary?

Unfortunately, when receiving maternity pay you are not entitled to ‘remuneration’ (normal salary) during maternity leave as you can only get maternity pay during this period. The only way you can receive furlough pay is to give the notice to end your maternity leave early and ask your employer if you can be put on furlough.

You need to bear in mind that if you end your maternity leave early, once the furlough scheme ends and businesses return to normal you will be expected to return to work immediately. You cannot go back onto maternity leave if furlough ends.

If you did not use up all your maternity leave and pay you may be able to take any untaken leave/pay as shared parental leave but you need to check eligibility carefully as it is very complex. We suggest taking specific advice before making a decision and we are happy to help with our free helpline with this.