Caution Urged on Pregnant Employees’ Rights as Lockdown Guidance Persists

Workers’ rights continue to be in the spotlight during the pandemic and one area attracting particular attention is the issue of protection of pregnant employees.

Just recently calls were made to introduce a work-from-home rule by a husband whose wife died from Covid-19, just days after giving birth.

The media reported that Ernest Boateng’s wife, Mary Agyeiwaa Agyapong, died on 12 April at Luton and Dunstable Hospital, where she worked as a nurse until she was 32 weeks pregnant.

Her widower wrote to Boris Johnston earlier this month urging him to make it a legal requirement for employers to allow all pregnant women who pass 20 weeks gestation to work from home or be suspended on full pay.

With the focus on pregnant women, and ever-changing rules and regulations, it is so important that Scottish employers make sure they fully understand their obligations to pregnant employees and stay on the right side of the law.

Employers are legally required to protect the health, safety and welfare of all of their employees. Following the outbreak of Covid-19, there is even greater emphasis on safeguarding staff; particularly for those classified as clinically vulnerable, such as pregnant women and those with health conditions.

Employers have always had additional duties towards new or expectant mothers in the workplace. These being to assess workplace risks, alter working conditions or hours to reduce any risks, to offer suitable work which is no less favourable if these risks can’t be avoided and to suspend the employee on full pay if these risks can’t reasonably be avoided. Given that pregnant employees already benefit from these protections, Covid-19’s only real impact here has been to introduce a new risk to consider.

If there are risks that can’t be mitigated, the onus is on the employer to find an alternative, equivalent duty for the pregnant employee. If this isn’t possible, they must suspend the employee on full pay.

There are, however, a number of steps employers can take steps to mitigate risks – particularly those posed by COVID-19.

Where the risk assessment identifies risks to a pregnant employee the employer may implement measures such as adjusting working conditions or hours, providing a suitable environment that allows social distancing guidance to be followed, and providing suitable PPE where required.

It must also be stressed that an employers’ obligation to carry out risk assessments extends beyond the office - organisations are still legally required to carry out a risk assessment if an employee is working from home.

Following the outbreak of COVID-19, there’s new guidance in place on ways to carry out risk assessments on homeworking systems and arrangements for staff working from home on an ongoing basis, using video conferencing software for example.

Employers must take extra precaution when it comes to the selection process surrounding redundancy and furlough, and the rules around maternity leave.

If a pregnant employee has reason to believe she’s been put on furlough or dismissed for any reason relating to her pregnancy – for instance upcoming maternity leave or absence due to pregnancy-related illness – the employer could find themselves at risk of a discrimination claim in the Employment Tribunal.

Usually, the earliest a woman can go on leave is 11 weeks before the expected week of childbirth. Employers may be wondering if they can require an employee to take maternity leave early, due to the pandemic or if the worker is self-isolating. I would caution against this – only the employee can decide when to start it.

One exception to that rule is if the member of staff is absent in the four weeks leading up to her due date, for any reason related to the pregnancy. For example, she may wish to shield as she nears her due date. This would give an employer reasonable grounds to trigger early maternity leave.

Overall, the rights of pregnant employees haven’t altered any as a result of the pandemic. Covid-19 is just another risk for employers to consider. Communication is key so ensure you have a regular dialogue with your employees, make sure that their needs are being listened to and continue to monitor the impact of any workplace changes or decisions.