There is a lot of confusion about the health and safety protection that pregnant workers can expect in the workplace during the COVID-19 pandemic. This is causing a great deal of stress to expectant mums.
Particular concern has been received from public sector workers, such as teachers, as to their pregnancy rights during the Pandemic.
Clinical evidence of risk to pregnant women -Clinically vulnerable category
Pregnant women have been included in the list of people at moderate risk (clinically vulnerable) .
The Joint statement from The Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the Faculty of Occupational Medicine document, on Occupational Health advice for employers and pregnant women during the COVID-19 pandemic (9/9/20) states that:
It is important to note that:
- Pregnant women of any gestation are at no more risk of contracting the virus than any other non-pregnant person who is in similar health
- For those women who are 28 weeks pregnant and beyond, there is an increased risk of becoming severely ill should you contract COVID-19 (this is true of any viral illness contracted, such as flu).
Working from home
A pregnant worker has no absolute right to work from home. However, an employer should consider whether or not to allow a pregnant worker to work from home in light of the risk that Covid-19 presents her health and safety in her workplace.
This means that employers have to take into account relevant matters that are individual to (a) the worker, and (b) the workplace.
As good practice, an employer ought to record their decision making process and decision in writing and send a copy to the employee.
Again, there is no absolute right to work from home if a worker is 28 weeks pregnant and beyond, but the Joint Statement advises that, “social distancing is particularly important for all pregnant women who are 28 weeks and beyond, in order to lessen their risk of contracting the virus.”
The Coronavirus Restrictions Regulations 2020 state that COVID -19 is a serious and imminent danger to public health.
Employers have a responsibility to protect the health and safety of pregnant workers under the Management of Health and Safety at Work Regulations 1999.
Pregnant workers must therefore have an up-to-date assessment of the risks to their health and safety whilst at work. The clinical advice relating to the risk of pregnant women must be considered by an employer as part of a workplace risk assessment.
Risk assessments are therefore individual to (a) the worker, and (b) the workplace.
Additional risk factors
The UK Obstetric Surveillance System Study (May 2020) has found that pregnant women: “from black, Asian and minority ethnic (BAME) backgrounds are more likely than other women to be admitted to hospital for coronavirus. Pregnant women over the age of 35, those who are overweight or obese, and those women who have pre-existing medical problems, such as high blood pressure and diabetes, also appear to be at higher risk of developing illness.”
Therefore, the higher risk presented to pregnant workers from BAME backgrounds, those over the age of 35, those who are overweight or obese and/or with medical problems ought to be considered as part of a risk assessment.
The risks presented to pregnant workers travelling to and from work ought also to be considered.
Steps to reduce risks at work
If there are risks, an employer must take reasonable action to remove the risks by such things as:
- Allowing home working
- Redeployment to a safer site
- Limiting interaction with others
- Adjusting your workload by for example not requiring attendance at meetings
- Flexible working
- Issuing PPE
- Addressing issues of stress
- Addressing issues to do with public transport by for example staggering start and finish times
- Suspension on full pay of there is no reasonable alternative work available
- Working from home from 28 weeks’ pregnant
- Delivering live lessons
- Completing administrative tasks
- Reducing the contact time that teachers have with students
- Working with small groups
- Improving ventilation
The term “reasonable action” will depend on all the circumstances and gives little certainty to the pregnant worker in terms of what action they can actually expect from their employer.
Suspension on health and safety grounds
Suspension of a pregnant worker on health and safety grounds is a legal requirement under Regulation 16(3) of the Management of Health and Safety at Work Regulations 1999 if the risks to her health and safety cannot be averted during the Pandemic. In short, if it’s not possible for an employer to make an environment safe for a pregnant woman, that worker should be entitled to be suspended on full pay.
Can I walk out?
The pregnant worker, when faced with a dangerous working environment which cannot reasonably be averted, has the right not to suffer detriment if they leave, or refuse to attend, their place of work (or take other appropriate steps) in circumstances where they reasonably believe there is a risk of being exposed to serious and imminent danger (section 44 of the Employment Rights Act 1996).
Therefore, if the pregnant worker leaves work or takes other action because of a serious risk to her health, she is protected in law from dismissal and/or other detriment such as disciplinary action and/or loss of pay. However, the central question is whether they reasonably believe that there is that risk of serious and imminent danger, and how reasonable that conclusion is.
A pregnant woman is discriminated against if she is treated unfavourably because of her pregnancy.
Therefore, if a pregnant worker is placed on sick pay, told to start maternity leave early (unless she is absent within four weeks from her due date) and/ or furloughed due to their pregnancy and Covid-19, this will amount to discrimination. The pregnant worker will have 3 months, less one day, to lodge a claim in the employment tribunal.
Are you being discriminated against because of your pregnancy?
At Thrive Law, we have sadly seen so many more instances of women being discriminated against because they are pregnant, during the pandemic. We can support individuals in their Tribunal matters, but we can also support you by negotiating settlements agreements with your employer to get the best possible outcome for you. We provide these services whilst being completely transparent as possible with you about the legal cost.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs.
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on firstname.lastname@example.org