Schools are facing numerous challenges from a staffing perspective as a result of the Covid-19 pandemic, not least in managing and addressing the anxieties many staff will inevitably have in working in the school environment. These anxieties are likely to be particularly relevant (albeit not exclusively) to those members of staff who fall within a vulnerable group, including those who are pregnant.
The joint unions (the NEU, Unison, Unite and GMB) have issued advice “for staff working in schools and colleges who are medically vulnerable or otherwise at higher risk from COVID-19, or who live with or care for such people.” This includes advice for those who are pregnant in respect of whom it is noted as follows:
“Given the known greater risks to women in their third trimester of pregnancy they should be permitted to work from home until their chosen date for starting maternity leave or, if this is not possible, medical suspension on full pay. It will be unlawful for employers to seek to trigger maternity leave in these circumstances. This should also be considered as an appropriate measure to remove risks to other pregnant women, in particular those who may be at increased risk due to other factors.”
There are a number of points raised here. Specifically, the joint unions’ advise that:
- pregnant staff in their third trimester should be permitted to work from home;
- if this is not possible, they should be suspended on medical grounds on full pay;
- it will be unlawful for schools to trigger maternity leave in such circumstances; and
- these points should also be considered as an appropriate measure to mitigate the risk to other pregnant women (i.e. those not in their third trimester).
We have set out below our advice to schools in relation to each of these points.
1. “ Given the known greater risks to women in their third trimester of pregnancy they should be permitted to work from home until their chosen date for starting maternity leave or, if this is not possible, medical suspension on full pay”
It is not strictly correct to say that schools are required to permit pregnant employees in their third trimester to work from home or, if not possible, to place them on a period of medical suspension on full pay. There may, however, be circumstances where a medical suspension is required if home working is not viable and it is not possible to put the necessary control measures in place to ensure the working environment is Covid-secure.
This accords with the additional duties that apply, irrespective of the current circumstances, to protect the health and safety of new and expectant mothers in the workplace. These duties require employers to:
- assess the workplace risks posed to new or expectant mothers;
- alter the employee’s conditions or hours to avoid any significant risk (this could include accommodating home working if possible);
- where this is not possible, offer suitable alternative work; and
- where this is not possible, suspend the employee on full pay.
Pregnant women have been identified as clinically vulnerable in the social distancing guidance. This is a precautionary measure and there is no evidence that pregnant women are more likely to get seriously ill with Covid-19. Home working should be considered if the employee can effectively work remotely but if this is not possible due to the employee’s role and duties, it does not necessarily follow that medical suspension is required. Provided a suitable risk assessment is in place and arrangements are made to effectively and sufficiently minimise the risk, pregnant women (including those in their third trimester) can continue to come into work. It is only if it is not possible to effectively minimise the risk and home working is not an option, that paid medical suspension is necessary.
Care should, however, be taken when dealing with a pregnant employee who is reluctant to return to work and we would recommend that specific advice is sought in these circumstances. It is worth noting here that employees are entitled to remain at home if they reasonably believe that there is a serious and imminent danger in attending work. If this reasonable belief can be established, an employee is protected from being dismissed or suffering a detriment (including, for example, a reduction in pay) as a result.
Whilst this will be assessed based on the individual circumstances, it is more likely that those in the vulnerable categories, including pregnant women (particularly in the third trimester), will be in a position to demonstrate a reasonable belief of serious and imminent danger and schools should be mindful of this when dealing with staff who are refusing to attend work on this basis, particularly where the school is considering refusing home working or withholding pay. Allegations of constructive dismissal and/or pregnancy related discrimination may also arise in such circumstances.
2. “It will be unlawful for employers to seek to trigger maternity leave in these circumstances”
An employer cannot force a pregnant employee to start their maternity leave early. To do so is likely to amount to discrimination on grounds of pregnancy and maternity.
Having said that, maternity leave will 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, but prior to the date she has notified. This would include absence due to a pregnancy related illness and, arguably, suspension on full pay for health and safety reasons.
3. “This should also be considered as an appropriate measure to remove risks to other pregnant women, in particular those who may be at increased risk due to other factors”
As noted above, employers are subject to additional duties in respect of all pregnant women, not just those in their third trimester. The risks to pregnant employees generally should be considered carefully as part of a school’s risk assessment and appropriate measures should be put in place to minimise the risk. This may include accommodated home working where this is feasible.
If the risks cannot be mitigated appropriately, and the employee is unable to work from home, the employer should suspend the pregnant worker on paid leave (to be clear, this is a suspension on medical grounds and should be distinguished from a suspension applied in the context of a disciplinary process). This is the case irrespective of whether the employee is in their third trimester.
Our advice generally would be for schools to communicate with their pregnant employees to discuss the steps taken to mitigate the risk, any particular anxieties and the options for addressing these. Where a pregnant employee is refusing to attend work or is particularly anxious, and cannot work from home, we would recommend seeking further advice based on the specific circumstances.