Employers are facing unprecedented circumstances in responding to coronavirus (COVID-19). Our main guidance will help you understand your obligations as you make difficult decisions and support staff through these challenges.
This page offers quick reminders to help employers reduce the impact on pregnant workers or those on maternity leave to ensure they don’t face discrimination.
Unless a pregnant employee needs adjustments to her working conditions for health and safety or pregnancy related reasons, you should treat her the same as any other employees.
Furlough, select for redundancy, dismiss, overlook for promotion or reduce the hours/shifts/opportunity for bonuses of an employee just because they are pregnant, have a pregnancy related illness or because they are about to go on maternity leave. Remember:
- 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.
Ensure you comply with health and safety and absence leave requirements for pregnancy and maternity. Carry out a risk assessment for all pregnant workers and new mothers, regardless of how many weeks’ gestation. The risk assessment must take into account:
- their job
- any pre-existing health conditions
- use of public transport
- social distancing guidance on minimising contact and maintaining a 2m distance.
A risk assessment must also consider whether the risk to the employee within the workplace is greater than in comparison to everyday life outside the workplace. Currently, if an individual is outside the workplace, they will be subject to the Coronavirus Restrictions Regulations and leaving their homes only in very limited circumstances. The risk to be assessed therefore must include the risk of getting to and from work in circumstances where they are only being exposed to this risk in order to reach the workplace.
If a risk is identified in the workplace which is greater than the risk outside the workplace, you must change her working conditions or hours of work where it is reasonable to do so to avoid that risk.
If this is not possible, for example because the increased risk of coronavirus (COVID-19) is from contact or proximity with others (e.g. cashier or healthcare assistant), then you must.
- offer her a suitable alternative job where the terms are similar and not substantially less favourable, or
- where there is no other suitable work, suspend her on full pay. This is the appropriate action, as opposed to furlough, as you must not treat your pregnant employee less favourably because she is pregnant.
Remove a pregnant employee from her job for any other reason than a health and safety concern that cannot be addressed, unless she agrees. To change an employee’s job because she is pregnant, and not for a health and safety reason, or by agreement with her, is likely to be pregnancy discrimination. This includes:
- selecting a woman for redundancy or furlough just because she is pregnant to avoid your obligations under health and safety legislation to make adaptations to her role, find her alternative work or suspend her on full pay as a result of risks to her health and safety. Where possible, it is best practice to consider what the employee wants to do.
Temporarily adjust her working conditions and patterns if this helps with pregnancy related sickness or to address a health and safety need.
Insist that she goes on maternity leave earlier than planned if she is still able to work without additional risk to her health and safety and she wants to continue to work. This includes:
- insisting that she starts her maternity leave early if she has to self-isolate or cannot come in to work or is off sick for non-pregnancy related sickness, unless she is in the four-week period before the start of her maternity leave. If she is off sick with pregnancy-related sickness in the last four weeks before her maternity leave starts, then you can insist she starts maternity leave early. However, this is up to you.
- putting pressure on her to give you a definite date to start her maternity leave or pressure her to take it earlier or later than she would want. You can ask her about when she wants to start her maternity leave but you must not insist that she gives you a definite date before she is legally required to do so, which is 15 weeks before her due date.
For employees on maternity leave, this may be a time where they feel particularly isolated and uncertain about what is happening at work. Here’s a reminder of what you should do to support employees on maternity leave:
Keep in touch with her, offer her the same support as other employees, such as access to employee assistance support. You must contact her 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.
If you agree, an employee can work for up to 10 days during her maternity leave without this affecting her entitlement to Statutory Maternity Pay. These are called Keeping in Touch days. You should still consider ways in which employees on maternity leave are able to have their Keeping in Touch days, even if roles or ways of working have been adapted because of coronavirus (COVID-19). Bear in mind that employees on maternity or shared parental leave may need extra support in understanding what changes may have happened to their roles and workplaces and what this means for their leave and return to work
Put pressure on her to confirm when she is returning to work or ask her to cut her maternity leave short. Remember:
- 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 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.
Make sure that if you are making redundancies or choices about furloughing staff, the selection process, including selection criteria and their scoring, does not disadvantage an employee because of her maternity leave or a related reason. Remember:
- If the employee’s role is made redundant during 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.
Postpone an employee’s return to work 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.
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: 07 May 2020