Maternity Action, a charity, is supporting the first pregnant worker who issued a claim against NHS Professionals (an employment agency) because they refused to furlough her, requiring her to work in what she felt were unsafe conditions (risk of Covid-19).  

All employers of all types need to be mindful of their obligations towards any pregnant employees during Covid-19.  They are on the list of vulnerable workers and indeed would need to shield if they suffer from heart conditions. 

All the legal duties towards such an employee are not new and are not specific to Covid-19.  The employer already has a duty to undertake a specific risk assessment in relation to this particular pregnant worker.  Clearly an employer may have precedent risk assessments that they have undertaken, looking at the generic risks in their particular workplace but in the individual case, it will need to be tailored to that particular person’s job and their own health conditions.

Following the assessment, the employer is under a duty to alter the pregnant employees’ working conditions to avoid risks that have been highlighted on the risk assessment.

Where it is not possible to prioritise those risks then the employer is under a duty to offer suitable alternative employment to that person. This might be working away from customer facing roles or might be working from home.  This has become particularly relevant during Covid-19.

Where the employer does not have any suitable alternatives they can deploy, then that employer is legally bound to suspend the employee on full pay for the duration of the rest of their pregnancy.  Thus in the case mentioned above, if the employer could not reduce the risk in the workplace then they should have been doing this.

There have not been any Covid-19 related cases yet but there are bound to be in the future. In particular, there may be claims from employees who have been furloughed, arguing that they have been furloughed on 80% of their salary when they should have been suspended on full pay.

Refreshing Law Limited

21 May 2020