Protection of pregnant women at work during COVID-19: Maternity Action Briefing

Maternity Action’s Legal Working Group have released a Briefing on the protection of pregnant women during the ongoing pandemic, which Farore Law are proud to be a signatory to.

A summary of the Briefing is produced below, as is a download link to the full document. Maternity Action’s own comment on the Briefing is available here.

Compliance with health and safety regulations has always been difficult for pregnant individuals to enforce, and it is important that public guidance remains consistent with health and safety law in light of the pandemic. As COVID-19 is a novel virus, those who are pregnant are considered to be one of the vulnerable groups who should be particularly careful to practice social distancing. Government guidance advises that pregnant individuals should work from home wherever possible, and avoid public transport and social contact.

The new Health Protection (Coronavirus, Restrictions) Regulations 2020 confirm that pregnant people constitute a “vulnerable group”. Employers’ obligations are set out in the Management of Health and Safety at Work (“MHSW“) Regulations 1999, which require all employers to undertake a workplace risk assessment and, if they employ women of childbearing age and the work could involve risks, to assess risks to new and expectant mothers. Following a written notification that a woman is pregnant, breastfeeding, or has given birth in the last six months, an employer must take reasonable action (such as altering working conditions or hours).

The MSHW Regulations 1999 make an exception for infectious disease and only requires employers to treat it as a workplace risk if there is a level of risk of infection which is “in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace.”

Since the closure of all but essential businesses and public services under the new Regulations, women who are not able to work from home are protected by the MHSW Regulations 1999 as the risks of exposure to COVID-19 are higher than “outside the workplace”. Pregnant women in these workplaces are entitled to special protection including reasonable adjustments or suspension on full pay (if no suitable alternative work is available) and failure to provide this may be sex discrimination.

Employees are also expected to take responsibility for assessing the risks, and if they consider there is serious and imminent danger of infection they can remove themselves from the workplace without loss of pay under the provisions above. This suggests that employees’ choices must be respected and if an employee forms their own reasonable belief that they are at risk of infection they must not be subjected to any detriment.

Furlough under the Coronavirus Job Retention Scheme can be used where vulnerable groups are unable to work temporarily because of the pandemic. Employers can claim reimbursement for 80% of an employee’s wage costs. Guidance specifies that employees’ maternity rights are not affected by being on furlough, and it is specifically stated that furlough can be used to cover employers’ contractual maternity pay costs. This suggests that it can also be used to cover the costs of suspension on health and safety grounds.

The Maternity Action Working Group consider that there is a clear legal obligation on employers to assess the risks from COVID-19 for pregnant women who are unable to work from home. This applies to all pregnant women, regardless of how many weeks’ gestation. Assessment must include the risk to the employee within the workplace as compared to outside the workplace. If the employer is unable to provide work that meets the requirements set out above, a pregnant woman must be suspended on full pay if no suitable alternative work is available.

It is also the view of the Working Group that in order to comply with existing health and safety law and current Government guidance on mitigating the risks of infection, particularly amongst vulnerable groups, it is imperative that risk assessments are carried out in relation to pregnant women and action is taken to remove risks. Unless the risk can be lowered to a reasonable level, the pregnant employee should be suspended on full pay until such time as she can work safely. Furthermore, if a pregnant employee forms a reasonable belief that she is at a serious and imminent risk of danger, she is obliged to care for her own safety. If she chooses to leave the work environment to protect herself, she cannot be subjected to any detriment such as loss of pay.

The full Briefing Note is available to download here.