Maternity Discrimination and Flexible Furlough

Flexible furlough came into force in July 2020. In a notable step back, the Government have changed the furlough deadlines to support those who return from maternity or other parental leave; they can still be furloughed.

But what about those who are only recently pregnant, or looking at maternity leave in the next few months? What support is available for them?

Maternity discrimination

The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of their pregnancy or maternity. Pregnancy and maternity are part of the protected characteristics which means that they have extra protection against discrimination in the workplace.

Risk assessments

Generally, an employer should carry out risk assessments, specifically for the unborn child that a woman is carrying, an employee who has become a mother within the last 6 months or a woman who is breastfeeding.

However, in consideration of COVID-19, employers should be adapting their risk assessments because pregnant women are potentially more at risk if they contract the virus than a non-pregnant person.

Rather than having a general COVID risk assessment (which all workplaces should have anyway), an employer should undertake an individual risk assessment in these circumstances. It is in the government guidance that pregnant women should stay at home and avoid contact with anyone where possible.

It is inevitable that some employees cannot feasibly reduce all levels of risk in the workplace, and it is not always able to take action to avoid that risk. This means that an employer has a duty to comply with additional obligations such as altering working conditions or hours, offering alternative work, or allowing a paid suspension.

Tribunals have previously found employers liable for maternity discrimination for failing to (or delaying) an individual risk assessment where there are clear risks to a pregnant person, which would mean that an employer could be undertaking discriminatory acts under the Equality Act 2010.

Maternity discrimination on flexible furlough

The Coronavirus Job Retention Scheme, furlough, is only available where the employer and employee consent to the same and if your employer does not want to keep you on furlough, then there is no obligation for them to do so. The principle is the same for the new flexible furlough scheme, which allows employees to be part-time furloughed and part-time at work.

The current guidance states that employers can furlough employees where they cannot return to work because of personal circumstances, and despite the flexible furlough scheme, an employee can remain on full furlough if their eligibility is met.

It is important for employers to be aware that by asking a pregnant woman to return to work as part of the flexible furlough scheme could be discriminatory; it may be safer if they remain furloughed full time

In light of this, it would be advisable to ask an employer what measures they are putting in place to ensure their staff safety, particularly for pregnant women. If these measures do not alleviate an employee’s concerns about working, then it may be appropriate for an employee to raise the issue informally with their employer that they wish to be placed on the full furlough scheme because they are classified as vulnerable.

Whilst there are many grey areas in this respect, if an employer takes an unreasonable stance, for example, where they could unfurlough another employee who is not clinically vulnerable or pregnant, they could run the risk of a discrimination claim.

Can you make a pregnant woman redundant whilst on furlough?

Redundancy is potentially one of the fair reasons for dismissal if the correct redundancy process is followed. A fair procedure comprises a number of stages: warning and consultation, fair basis for selection, consideration of alternative employment and appeal.

The current circumstances within COVID-19 do not change the redundancy process, however, employers should be mindful that if a person is made redundant because they are pregnant it is likely to amount to pregnancy discrimination under the Equality Act 2010.

Employers should be mindful that if there is close proximity between an employee disclosing that they are pregnant and them being made redundant then it is also likely to be contrary to the act.

Despite pregnancy and maternity discrimination is valid, there is no extra protection to employees who are pregnant in redundancy situations other than protection from discrimination. Please click here to watch our MD Jodie hill’s video on redundancy when pregnant or on maternity leave.

By Annabelle Oliver

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