Posted on 8.1.21
After Prime Minister Boris Johnson placed the UK back into lockdown on Monday 4th January, there have been a number of enquiries by pregnant women who are still being asked to attend work even if their roles are public-facing, such as supermarket workers or healthcare professionals.
The Government has issued helpful guidance regarding pregnant workers, which can be accessed by clicking here.
The lockdown is causing major concerns for many pregnant women and their employers in what steps to take next, despite this guidance.
My employer says I have to go into work.
The guidance is split into 2 sections, those women who are less than 28 weeks pregnant, and those over 28 weeks, however, in each case an employer must:
- Carry out a workplace risk assessment. Your employer must ensure that you are able to adhere to any active social distancing guidance.
- Any risks that are identified should be removed or managed.
- If those risks cannot be removed or managed then you should be offered suitable alternative work or working arrangements, such as working from home, or in a different capacity.
- If there are no alternatives, then you should be suspended on full pay. Advice on suspension and pay can be found in the HSE Guidance here: ttps://www.hse.gov.uk/mothers/index.htm
If you are over 28 weeks pregnant, your employer should take a more precautionary approach when going through the above steps.
If you are self-isolating
If you can work from home, then you should continue to be paid your normal salary and benefits whilst doing so, in self-isolation. If your employer does not usually offer home-working or flexible working, this is something that should be discussed and plans put in place to make it possible.
If you cannot work from home, and you are poorly you should be treated as if you are on sick leave and therefore should be entitled to sick pay. You will need to check whether you qualify for statutory sick pay (which will depend on your length of service and your average earnings), in the event that this is what your employer offers. You may get more than this under your contract in contractual sick pay, so it’s best to check. Sick pay should be paid from the first day of your absence, rather than the fourth day (under the normal rules relating to statutory sick pay).
If you are self-isolating because you have had contact with somebody who has tested positive, or if someone in your household has the virus, you are not entitled to be paid, unless you are able to work from home. In this situation, you can ask your employer to furlough you so you receive furlough pay (80% of your normal salary up to a maximum of £2,500 per month), otherwise, you will have to take another type of leave. Options can be found in my blog: School Closures – Childcare.
Can my employer force me to take early maternity leave?
In normal circumstances, if a pregnant employee is off sick with a pregnancy-related illness in the last four weeks before her expected week of childbirth, their employer can start their maternity leave automatically. This will apply if you are suspended from work on health and safety grounds as a result of the pandemic.
If you are self-isolating based on the Government’s advice, this should not be classed as a pregnancy-related illness and therefore this should not apply.
Will my maternity pay be affected?
The Government has said that individuals should not be penalised for self-isolating, nor taking furlough leave and there will therefore be no impact on an individuals’ statutory maternity pay as a result.
In relation to statutory maternity pay (SMP), this is usually calculated using an employee’s normal, average weekly earnings, which is calculated by taking an average of your gross earnings over a period of at least eight weeks up to and including the last payday before the end of your qualifying week (the 15th week before the week your baby is due). This period may obviously vary, depending on how you are paid i.e. weekly or monthly. It, therefore, may be the case that an individual has already passed that period and therefore her SMP will not be affected.
If you agree to reduced pay or hours (other than furlough) and these occur during the qualifying period, your SMP may be affected.
You will have to speak to your employer if your contract/staff handbook means that you are entitled to contractual maternity pay, to ascertain confirmation s to whether this will be paid in full / not.
It is always worth speaking to your employer and getting confirmation, that no matter your situation, you will still receive all of the maternity pay you should have been getting, regardless of the pandemic, especially in cases where maternity leave might not be until later in the year.
Can I request flexible working in this situation?
All employees with over 26 weeks’ service are also entitled to make requests for flexible working albeit if accepted this would amount to a permanent change to your terms and conditions of employment.
It is likely that you will only want flexible working arrangements for a limited period of time and therefore communication is key. We would suggest you speak to your employer about suitable arrangements for your circumstances (work shorter hours, from home, etc.) to enable you to continue to work whilst looking after children.
We ourselves are receiving updated information on a regular basis and will be keeping this page as current as possible. If you cannot find the information you need here, please contact our employment team or call 0161 930 5151 with more details (please note we are receiving a high number of enquiries at this current time).
Other Useful Sources
There are also a number of other sources available including:
- ACAS Coronavirus
- Government UK COVID 19 Guidance for Employers and Businesses
- NHS COVID-19
- Public Health England
- Public Health Wales
- Health Protection Scotland
- Public Health Agency in Northern Ireland
Maternity Related Content
- Why good communication matters during maternity leave
- Postnatal Depression, Maternity Leave and Returning to Work
- ACAS publishes new guidance on Pregnancy and Maternity Discrimination
- Family-Friendly Policies | Working Parents Rights
- Maternity Pay – All You Need to Know
- EHRC Report – Legal Support for Maternity Leave