Duties towards pregnant employees during COVID-19

Pregnant employees are currently classed by the Government as clinically vulnerable (unless they have other conditions that push them into the clinically extremely vulnerable category).

Clinically vulnerable individuals are advised to minimise their contact with others and adhere to all other guidance around handwashing and social distancing; however, they are not presently advised to remain at home specifically as a result of being in that category.

Given that they are at extra risk, employers should particularly be aware of the additional duties they have towards pregnant employees and the consequences they potentially face if they fail to comply with those duties.

Generally, all employers are under a general duty to protect the health and safety of their employees and with the emergence of COVID-19, this now entails ensuring that workplaces are ‘COVID secure’ and that the Government’s guidance is fully complied with.

In respect to pregnant employees, the law requires employers:

• To undertake an assessment of the risks posed to pregnant employees in the workplace;
• To adjust the employee’s working conditions to avoid any identified significant risk;
• Where adjustments cannot be made to avoid any significant risk, to offer suitable work on terms that are not ‘substantially less favourable’; and
• Where such suitable alternative work is not available, or the pregnant employee reasonably refuses to undertake the suitable alternative work, to suspend the employee on full pay.

Conducting risk assessments

Employers have a duty to undertake formal health and safety risk assessments in relation to any potential risks to new or expectant mothers and their babies. This duty arises regardless of whether an employer actually employs someone who is pregnant, as the duty is in relation to employees who are of child-bearing age and who will undertake work of a kind that may involve risk to the health and safety of the employee or their baby.

Employers should factor in the increased risk posed to pregnant employees from the ongoing pandemic.

Avoiding risks

Employers who have received written notification that an employee is pregnant (or has given birth, or is breastfeeding) are under an obligation to do all that is reasonably possible to remove exposure to any significant risk that has been identified as part of their risk assessment.

Employers must give the relevant employees information about the risk and about the actions that have been taken to avoid it. Employers should discuss identified risks and the actions they are looking to take with the employee and record any actions taken (or, where they are unable to take any actions, the reason(s) why) in writing.

Amending working conditions

If the risk cannot be avoided, employers must temporarily alter the employee’s working conditions or hours of work.

Where employees are contractually entitled to a fixed salary, that should not be reduced as a result of any amendments being made.

All changes should be set out in writing, making it clear how long they will last. Employers would be best placed to ask the employee to return a signed copy of the letter indicating their agreement to the amendments.

Providing suitable alternative work

If it is not reasonable to alter the employee’s working conditions or hours of work, employers must offer the employee suitable alternative work.

Alternative work will be classed as suitable if:

1. It is work that is both ‘suitable and appropriate’ for the employee to do in the circumstances; and
2. The terms and conditions applicable to the employee performing the alternative work are not substantially less favourable to the employee than her current terms and conditions.

Employers will need to think about whether the work is ‘suitable and appropriate’ for the employee. As part of that consideration, employers will need to look at the type of work on offer, for example, whether it is of a similar status to the current role and whether the place of work is different. They will also need to think about the employee’s skills and experience to determine whether the role is suitable for that particular employee.

Again, any offer of suitable alternative work should be put in writing to the employee and the employer should seek to obtain signed confirmation of the employee’s agreement to the new work.

Suspending

If no suitable alternative work is available, or if an employee reasonably refuses to accept the offer of suitable alternative work, employers must suspend the employee.

Any suspension should be for as long as is necessary to avoid the identified risks and should normally be on full pay unless the employee has unreasonably refused the offer of suitable alternative work, in which case they lose the right to be paid for the duration of the suspension.

Acas has produced guidance on suspending pregnant employees, which can be found here.

Generally, suspension should be a last resort measure and should be handled sensitively. Employers should discuss the suspension with the employee and provide them with a letter setting out clearly:

1. The reasons for suspension;
2. The duration of the suspension (this is likely to be until the employee’s maternity leave starts or such other time as the identified risk can be avoided);
3. The employee’s rights and obligations during the suspension;
4. Who the employee should contact during the suspension;
5. Details of any reviews or meetings that will take place during the suspension (employers should look to keep in touch with suspended employees at least once per month); and
6. That the suspension should be seen in no way as a punishment or disciplinary action, rather, the employer has taken these drastic steps to ensure the health and safety of the employee and their baby.

The consequences of failing to comply with the above steps

Failure to comply with the above steps may amount to a serious breach of the employment contract which, if the employee resigned, could result in a potential constructive dismissal claim.

Employers could also potentially face a claim for pregnancy and maternity-related discrimination. They should be aware that employees have statutory protection under the Equality Act 2010, during the ‘protected period’. This period starts when the employee’s pregnancy begins, and ends either at the end of any additional maternity leave period (or, if earlier, when the employee returns to work after the pregnancy) or where the employee is not entitled to ordinary/additional maternity leave, at the end of the period of two weeks beginning with the end of the pregnancy.

During the protected period, the employer must not treat the employee unfavourably because of the pregnancy or because of an illness suffered as a result of the pregnancy. It is easy to see how failing to look at suitable alternative work or suspending pregnant employees without pay could be classed as ‘unfavourable treatment’.

Additionally, pregnant employees who have suffered discrimination are able to bring claims for ‘just and equitable’ compensation, if their employer fails to offer suitable alternative work before acting on a suspension, or if their employer fails to pay them for the duration of a suspension where they have reasonably refused the offer of suitable alternative work.

In addition, pregnant employees have specific claims for ‘just and equitable’ compensation if their employer fails to offer suitable alternative work before acting on a suspension or if their employer fails to pay them for the duration of a suspension where they have reasonably refused the offer of suitable alternative work.