Coronavirus and maternity leave
According to the Chief Medical Officer, expectant mothers fall into the “at risk” category of the population. Since the COVID-19 outbreak, employers have been asking many questions in relation to how the virus will affect expectant mothers and women on maternity leave.
This is especially so since the introduction of the Coronavirus Job Retention Scheme (Scheme), more commonly known as the ‘furlough’ scheme. In this blog we will answer some of the key questions.
Can an employer require a pregnant employee to start their maternity leave early?
No.
An employer cannot force a pregnant employee to start maternity leave early. Maternity leave will, however, start automatically if the employee is absent from work “wholly or partly because of pregnancy” after the beginning of the fourth week before the expected week of childbirth, even if it is before the date she intended to go on maternity.
In all other circumstances, including where the employee is off sick for a non-pregnancy-related illness, maternity leave will start on the chosen start date. Any attempt by an employer to force a woman to start maternity leave earlier would amount to discrimination on grounds of pregnancy and maternity.
Can an employer suspend a pregnant employee on the grounds of health and safety?
Pregnant women have been “strongly advised” to socially isolate, to avoid travelling on public transport, and to work from home where possible. If the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available, the employer should consider suspending the employee on full pay.
Can an employer furlough a pregnant employee and how do they calculate furlough salary for an employee who is about to go on maternity leave?
Provided that the employee satisfies the necessary criteria (consenting to furlough, being employed prior to 28 February and paid via PAYE), there is nothing stopping employers from placing a pregnant employee on furlough leave. During this period of leave pregnant employees will receive 80% of their usual salary (up to £2,500) as with all other furloughed employees.
If an employee who is on maternity leave is placed on furlough it does not bring their maternity leave to an end, nor will it otherwise alter their employment rights. Furloughed employees on maternity leave retain their right to be paid and to receive Statutory Maternity Pay (SMP).
Pending further clarification it would seem that entitlement to SMP, the rate of pay and its calculation whilst on furlough will remain unchanged. However, government guidance does state that an employer can recover 80% of any enhanced contractual maternity pay via the Scheme.
At present it seems that employee can be simultaneously furloughed and on maternity. This would seem contrary to the usual position that an employee cannot be on maternity leave and another type of statutory leave at the same time. We await further guidance or legislation on this point.
Can an employer make redundant an employee who is on maternity leave?
Yes, but under regulation 10 of the Maternity and Parental Leave Regulations 1999, if an employee who is on maternity leave is made redundant they should be offered a suitable alternative position without any application process.
If you have any questions or would like more information on any of the above, please email or call our Employment Law team today on 0113 207 0000.
Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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