Employers must understand their obligations to pregnant employees

Caroline Maher is an Associate, Wright, Johnston & Mackenzie LLP

Calls were made to introduce a work-from-home rule by Ernest Boateng, whose wife Mary Agyeiwaa Agyapong died from Covid-19 days after giving birth in April at Luton and Dunstable Hospital, where she worked as a nurse until 32 weeks pregnant.

Mr Boateng wrote to Prime Minister Boris Johnson urging him to make it a legal requirement for employers to allow all pregnant women who pass 20 weeks gestation to work from home or be suspended on full pay.

With the focus on pregnant women, and ever-changing rules and regulations, Scottish employers must understand their obligations to pregnant employees.

Employers are legally required to protect the health, safety and welfare of all employees. Following the outbreak of Covid-19, there is greater emphasis on safeguarding staff; particularly those classified as clinically vulnerable, such as pregnant women and those with health conditions.

Employers have always had additional duties towards new or expectant mothers in the workplace: assessing workplace risks, altering working conditions or hours to reduce any risks, offering suitable work no less favourable if these risks can’t be avoided – and suspending the employee on full pay if risks can’t reasonably be avoided. As pregnant employees already benefit from these protections, Covid-19’s only real impact has been to introduce a new risk to consider.

If risks can’t be mitigated, the onus is on the employer to find an alternative, equivalent duty for the pregnant employee. If this isn’t possible, they must suspend the employee on full pay.

There are, however, a number of steps employers can take to mitigate risks – particularly those posed by Covid-19.

Where the risk assessment identifies risks to a pregnant employee, the employer may implement measures such as adjusting working conditions or hours, providing a suitable environment that allows social distancing and providing suitable PPE where required.

An employer’s obligation to carry out risk assessments extends beyond the office; organisations are legally required to carry out a risk assessment if an employee is working from home.

New Covid-19 guidance is in place on ways to carry out risk assessments on homeworking systems and arrangements for staff working from home on an ongoing basis, using video conferencing software, for example.

Employers must take extra precautions when it comes to the selection process surrounding redundancy and furlough, and the rules around maternity leave.

If a pregnant employee believes she’s been put on furlough or dismissed for any reason relating to her pregnancy (like upcoming maternity leave or absence due to pregnancy-related illness), the employer could find themselves at risk of a discrimination claim.

Usually, the earliest a woman can go on leave is 11 weeks before the expected week of childbirth. Employers may be wondering if they can require an employee to take maternity leave early, due to the pandemic or if the worker is self-isolating. I’d caution against this; only the employee can decide when to start it.

One exception is if the member of staff is absent in the four weeks leading up to her due date, for any reason related to the pregnancy. For example, she may wish to shield as she nears her due date. This would give an employer reasonable grounds to trigger early maternity leave.

Caroline Maher is an Associate, Wright, Johnston & Mackenzie LLP

Employers must understand their obligations to pregnant employees - Caroline Maher