There are special obligations for pregnant employees and it is important that businesses understand the obligations. There is no doubt that running a business during these times is uncertain and worrying, but it is important that the welfare of employees comes first.
We know that businesses are concerned about the health and wellbeing of their employees, the financial impact on their business, and making sure they get things right.
The purpose of this set of FAQs is to make sure that businesses understand their obligations and to help to avoid unnecessary conflict, worry or risk.
Pregnant women are protected by law against risks to their health and safety, and the health and safety of their baby. They are also protected against unfavourable treatment because they are pregnant.
The laws that cover pregnant employees are the Management of Health and Safety at Work Regulations 1999 and the Equality Act 2010.
The current Government guidelines class pregnant women as “clinically vulnerable”. Their guidance advises that any pregnant women should be “shielding”. This means that they need to do more than other people to try to stop themselves from getting Coronavirus. The Government are advising that pregnant women should spend their time at home. There is a further category “clinically extremely vulnerable”. Pregnant women with congenital heart conditions (congenital or acquired) are in this category. If your pregnant employee receive a letter from the NHS advising them to stay at home, then they should do this for 12 weeks from the date they had the letter.
In practice, you can ask your pregnant employees to work from home, where possible. If their job means that they cannot work from home e.g. they are an office cleaner, an optician, landscape gardener etc., then other options need to be considered.
First thing you should do is to carry out a risk assessment.
What exactly are the risks to the pregnant employees you have and can these risks be removed?
This isn’t anything unusual really – you already have a duty to undertake a pregnant employee risk assessment and you already have to do H&S risk assessments in the workplace. Depending on what industry your business is in, you may even have to do more risk assessments than this!
Look at alternative working conditions. Are there other ways that the job can be done? Is there any personal protective equipment (PPE) that you can introduce to ensure your employee is safe?
Don’t panic. If you can’t reduce the risk in that particular role, then you can look at offering your pregnant employee a different position as a temporary solution. If they normally work in a setting where they are in contact with the public, but you also employ people to do office-based duties and this job carries minimal risk, then why not look at redeploying them? If this is something that you can do, then it means your employee still gets to make a positive contribution and that they can continue to come to work
If you are unable to allow them to work from home, remove the risk to allow them to continue to work, or move them to a different role, then you need to look at whether they should be suspended from work on medical grounds.
If a workplace is unsafe, then your pregnant employees will need to be placed on medical suspension, on full pay, until you are able to allow them to return to work.
People who are self-isolating due to Coronavirus can be put on sick leave and claim SSP. The regulations only currently cover people who are “extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition…” This means that pregnant women who are shielding cannot be put on sick leave and claim SSP.
You need to think about why you are doing this. Are you doing this as an alternative to redundancy, or because you cannot make the workplace safe for them? If it’s an alternative to redundancy, then you’ll be fine. If it’s because you can’t make the workplace safe, then you should really be looking at medical suspension.
You can, however, furlough a pregnant employee, on full pay or at 80% pay, should they agree to it. This would make is less likely that they are being treated unfavourably and unlawfully.
There is a risk that you could be facing an Employment Tribunal claim if you have placed a pregnant employee on sick leave (paying them SSP) instead of medically suspending them or furloughing them (on full pay).
If you place a pregnant employee on sick leave, you could be opening yourself up to unlawful pregnancy discrimination and unlawful deductions from wages claims.
If you’re looking to get your employees back into work, and you have any employees who are pregnant, you’re going to need to do a risk assessment.
With the risk that the pandemic has brought, all we are doing here is adding another section to the risk assessments you already have in place.
There’s a lot of information on how to reduce risks for things we’ve known about for a long time, but there’s not that much about reducing the risk of infection from Coronavirus.
Follow the guidelines from the Government and remove any other risks that you identify.
It can mean introducing things like:
While you’ve done all of these lovely risk assessments in the background, made changes, and removed as much risk as possible, it’s no good unless you actually tell your employees what you’ve done.
In the eyes of the law, if the EMPLOYEE thinks there is a risk and takes appropriate steps to avoid that risk (such as not coming to work) and you dismiss them – there could be conflict and a potential claim.
Unfortunately, whether you agree with their opinion or not, doesn’t really come into it.
BUT, to avoid things like this, tell your employees what risk assessments you’ve carried out. Tell them about the risks you’ve identified and how you are changing things to reduce or remove these risks. That way, the information is there for them to show that you’ve done everything you can.
As with most situations, having a chat about things with your employees can make a massive difference.
If we can help with anything, please let us know. We are helping our clients prepare risk assessments across many different sectors and industries (and we can do this remotely and efficiently for you). If you want to speak to someone about risk assessments – please give our Operations Manager, Dafydd Lloyd a call on 07814251297 or drop him an email on email@example.com
If you have pregnant employees currently and they are on furlough, you might need to consider what happens with those employees when the furlough scheme finishes. We are happy to discuss this with you. You can contact the PitCrew on firstname.lastname@example.org