Pregnancy, Maternity and COVID-19
We have seen many enquiries relating to a pregnant workers rights and whether they should be expected to return to work, so we thought that we would set out some of the relevant legislation in respect of a pregnant employees rights and what you should be doing in light of the current COVID-19 pandemic when an employee informs you that they are pregnant.
Employers have a duty to carry out a general risk assessment where they employ women of child-bearing age pursuant to the Management of Health and Safety at Work Regulations 1999 (Regulation 16). The risk assessment should generally review; employees’ duties, the working processes, working conditions, any exposure to harmful agents which could present risks, the general risks to health and safety of a new or expectant mother, or to that of her baby within the workplace, and any other risk bearing factors within the business. Each business will be different and there is no set formula or tick box exercise of which to follow. It is imperative that if you have a workforce at childbearing age then you should be conducting such risk assessment irrespective of whether any of your workers are pregnant. Failures and delays in doing so can lead to claims for compensation, and liability for discrimination pursuant to the Equality Act 2010.
In addition to the above, there is a specific duty to carry out an ‘individual risk assessment’ for individuals who notify their employers in writing that they are pregnant, or that they have recently given birth or that she is breastfeeding, and ‘whose work gives rise to risk to her health or that of her child’. In the current climate unless an employee is working from home, it is likely to be found by a Tribunal that there is such a risk requiring a individual assessment, and therefore it would be advisable to carry out an individual risk assessment for all such employees.
Where a risk assessment is conducted following a notification of pregnancy and it becomes apparent that the employee will be exposed to risk, by reason of her condition, and it is not possible for an employer to take action to avoid that risk, under the Regulations an employer is under a duty to comply with additional obligations.
In those circumstances an employer should look at other options for their pregnant employees, such as altering working hours, altering working conditions or offering alternative work. Further, it is particularly important to have regards to the Government’s Guidance on 'clinically vulnerable’ members of society detailed at paragraph 9 of the guidance document updated on 4th June 2020, which can be found here. Pregnancy is detailed in the guidance as a relevant indicator which makes an employee higher risk of severe illness from COVID-19. The guidance from the Government, relevant at the time of writing, is that those employees should stay at home and minimise contact as much as possible. In line with that, there may well be very limited ability for a pregnant employee to return to work, but that being said it certainly will not be impossible.
Where employers cannot offer a safe environment to work or reduce identified risks, employers are under an obligation to offer their pregnant employees alternative working conditions so such risks can be eradicated or at the very least substantially reduced. It would be prudent where there are no measures that could be implemented to reduce and minimise contact at the business, to look at offering alternative methods of working which may include offering alternative job roles. This may be positioning such as administration, accounting or similar roles that can easily be conducted from home.
Where employers have surveyed all of the options as mentioned above, and there is no reasonable way of avoiding the risks identified, and there is no appropriate alternative work that the pregnant employee can carry out, they must be suspended. The period of suspension will depend on the nature of the risk. The duration of the suspension as a minimum, should be for as long as is necessary to avoid the risk, to a reasonable extent. Where this course of action is considered, it is again important to note that the employee is entitled to full pay whilst they are suspended, a failure to do so may lead to a claim for a pregnancy discrimination contrary to the Equality Act 2010. However, where an employer offers a suitable alternative position, but the employee refuses, an employer may be entitled to withhold pay in certain circumstances.
Here at Legally Blogged we appreciate that this is an extremely stressful and worrying time for our readers and for everyone, and we hope that you find the information contained in this blog useful. If you would like any further information or clarification on the above, please do get in touch here.
PLEASE NOTE: This blog is a general summary of the law and it should not replace legal advice tailored to your specific circumstances. If you require specific legal advice then contact us using the Direct Access form which can be found here.
