An update on COVID-19: 'Plan-B Lite'
Guidance for employers on the latest new rules for preventing the spread of COVID-19 in the wake of the Omicron variant.Read more
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:
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.
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.
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.
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:
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.
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:
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.
If you would like further information or guidance on employers’ duties to pregnant employees, contact our Employment team on 01332 226 149 or complete the form below.
Scroll to next section
Scroll back to the top