Newsflash: Covid-19 NHS letters and dealing with pregnant staff

What action should you take in relation to pregnant staff who can’t work from home?

Unfortunately there is no easy answer to this question. Pregnancy is one of the categories included in the Government’s list of vulnerable people, issued on 16 March 2020, which “strongly advises” social distancing and working from home. Given the risk of allowing such an employee to continue working as normal, there are currently at least four possible options:

• The employee signs themselves off work under the new Statutory Sick Pay (SSP) regime and receive SSP or contractual sick pay if applicable (although there is still some uncertainty about how far these provisions go. Read more about SSP HERE. This is likely to be unsatisfactory from the employee’s point of view and they might not be willing to do this. It may also amount to indirect pregnancy discrimination, although it’s potentially capable of objective justification under the Equality Act 2010 given the extenuating circumstances.
• Pregnant workers are entitled to a risk assessment and the result of any risk assessment at this point will be that it’s not safe for them to remain at work. You will then need to suspend the employee on full pay in accordance with regulation 16(3) of the Management of Health and Safety at Work Regulations. This may be not be financially sustainable for you as the employer but is a lower-risk option in terms of legal challenge.
• Depending on how advanced the employee’s pregnancy is, she may be able to start her maternity leave early (any time from the 11th week before the expected week of childbirth), but you can’t force her to do this. Maternity leave will start automatically if the employee is absent from work “wholly or partly because of pregnancy” after the beginning of the fourth week before the expected week of childbirth. It seems likely that an employee suspended on health and safety grounds could meet that criterion, not least because suspension on these grounds can only take place if the employee is pregnant.
• The final possible option would be to agree to place the employee on furlough leave. Details of the scheme are still emerging, but the latest HMRC guidance published on 4 April 2020 is here. If your business is busy and the staff fully occupied during the Covid crisis (for example if you are a GP practice or a care home), it may be difficult to argue that furloughing a pregnant member of staff is a genuine alternative to making her redundant. It remains to be seen what approach will be taken to those kinds of applications under the scheme. Employers should ensure that their decisions on who to select for furlough leave are not based on discriminatory criteria, except where such discrimination is likely to be justified. Furloughing vulnerable groups, including pregnant staff, would likely be deemed a proportionate means of achieving the legitimate aim of protecting the health and safety of vulnerable employees as identified in government guidance.

Please contact employment expert Julia Gray if you have any questions regarding this newsflash.