You must not discriminate against employees who are:
- on or returning from maternity leave
Unless a pregnant employee or new mother needs adjustments to her working conditions for health and safety reasons, you should treat her the same as any other employee.
1. Carry out a risk assessment
A risk assessment for all pregnant workers and new and breastfeeding mothers must take into account:
- their job
- any pre-existing health conditions
- use of public transport
- social distancing guidance relating to coronavirus (COVID-19)
- whether the workplace risk is greater than in everyday life outside the workplace, including getting to and from work
2. Make reasonable changes to working conditions
If a risk is identified in the workplace which is greater than the risk outside the workplace, you must make reasonable changes to avoid that risk, such as:
- adjusting working conditions or hours
- providing a suitable place to rest for breastfeeding mothers that allows social distancing guidance to be followed – it is also good practice to provide reasonable facilities and breaks
If this is not possible, for example because a healthcare assistant is in close proximity to others, then you must.
- offer a suitable alternative job where the terms are similar and not substantially less favourable
- suspend her on full pay if no other suitable work can be found
3. Ensure any changes to a role are lawful
Make sure the selection process around redundancies or furloughing, including criteria and scoring, does not disadvantage an employee because of pregnancy, maternity leave or a related reason.
Do not furlough without agreement, select for redundancy, dismiss, overlook for promotion or reduce the hours, shifts or opportunity for bonuses of an employee just because:
- they are pregnant
- they have a pregnancy related illness
- they are about to go on maternity leave
- you want to avoid obligations under health and safety legislation
If you dismiss an employee who is pregnant:
- you must provide her with a written explanation about why she was dismissed or offer her a suitable alternative job where the terms are similar and not substantially less favourable
- if the employee has worked continuously for you for at least two years you must also show there is a fair reason for the dismissal and that you followed a fair procedure
Acas has more information on what you need to do for the dismissal to be fair.
If you dismiss an employee on maternity leave:
- you are legally required to give her the first option on any suitable alternative work which is available
- she must be considered before any other employee
- it is your responsibility to identify a suitable alternative available position and offer it to your employee
- it is not enough to tell the employee to search the intranet to find a suitable alternative job
4. Communicate with those on, or about to go on, maternity leave
You can ask about when the employee wants to start her maternity leave but she is only required to give a definite date 15 weeks before her due date.
You must not insist maternity leave is taken earlier than planned if:
- she wants to continue working and can do so without additional health and safety risks
- she has to self-isolate, cannot come to work or is off sick for non-pregnancy related sickness
- she is off sick with pregnancy-related sickness unless she is in the last four weeks before her maternity leave starts
Do not put pressure on a worker to cut short maternity leave or confirm a return date:
- an employee entitled to maternity leave must take at least two weeks compulsory maternity leave after the baby is born, or four weeks if she is a factory worker
- you must not ask a woman to work, or allow her to do so, in this compulsory period - she is entitled to return any time after that, provided she gives you eight weeks’ notice
- employees are legally entitled to take up to 52 weeks maternity leave
- you must assume that a woman on maternity leave will return at the end of the 52 weeks unless she gives eight weeks’ notice to return earlier - the same applies to adoption leave
Don’t postpone an employee’s return to work from maternity leave unless:
- she wants to postpone it and you agree, whether paid or unpaid
- she changes the return date and has not given you the full eight weeks’ notice, in which case you can delay her return but only up to the end of the eight weeks
You must contact employees on maternity leave about:
- any reorganisation, or other changes that affect her job
- any promotion or other job opportunities, explaining what she needs to do to apply
- possible or planned redundancies or furlough that might affect her
It is best practice to:
- offer Keeping In Touch days – up to 10 days of work during maternity leave that doesn’t affect entitlement to Statutory Maternity Pay and may help with understanding changes to roles and workplaces during the pandemic
5. Monitor the impact of your decisions
Useful questions to ask include:
- have you treated a pregnant worker differently to other employees in a way that could affect their pay, job prospects or job security?
- is there something you can do differently to ensure these unintended consequences don’t happen?
- are you monitoring the impact of your decisions on pregnant women and breastfeeding mothers?
For more information, please see our full guidance for employers on how to support pregnant women, employees on maternity leave and those returning from maternity leave.
We are interested in hearing from employers and employees about good practice in managing non-discriminatory decision making processes during the coronavirus (COVID-19) pandemic. Please contact email@example.com to share your stories.
Last updated: 26 Jun 2020