Coronavirus (COVID-19) guidance for employers: Your duties on pregnancy and maternity

You must not discriminate against employees who are:

• pregnant
• on or returning from maternity leave
• breastfeeding

Unless a pregnant employee or new mother needs adjustments to her working conditions for health and safety reasons, you should treat her the same as any other employee.

Examples include:

• an employer has not been able to prevent customer contact altogether and understands an employee with depression and anxiety in a customer-facing role is experiencing increased levels of anxiety – they are redeployed into a non-customer facing role with the employee’s agreement
• an employer asked managers to provide more frequent check-ins or phone calls with staff struggling with their mental health during lockdowns– the employer explores a longer-term support plan for the employee physical workplaces reopen
• an employer decides to ask an employee if they want to change or swap roles because COVID-19 has had a disproportionate impact on them due to their disability or health condition – the employee agrees as they are not disadvantaged by the change in their roles or duties

If a risk is identified in the workplace which is greater than the risk outside the workplace, you must make reasonable changes to avoid that risk, such as:

• adjusting working conditions or hours, to enable pregnant women to work during quieter hours and in conditions which adhere to social distancing measures to mitigate the risks of contracting COVID-19 while pregnant
• providing a suitable place to rest for breastfeeding mothers that allows any COVID-related guidance to be followed – it is also good practice to provide reasonable facilities and breaks

If this is not possible, for example because a healthcare assistant is in close proximity to others, or because pregnant women are less likely to have been vaccinated and could therefore be at greater risk when returning to the workplace, especially if unable to socially distance, then you must:

• offer a suitable alternative job where the terms are similar and not substantially less favourable
• suspend her on full pay if no other suitable work can be found

Make sure the selection process around redundancies, including criteria and scoring, does not disadvantage an employee because of pregnancy, maternity leave or a related reason. 

Do not select for redundancy, dismiss, overlook for promotion or reduce the hours, shifts or opportunity for bonuses of an employee just because:

• they are pregnant
• they have a pregnancy related illness
• they are about to go on maternity leave
• you want to avoid obligations under health and safety legislation

If you dismiss an employee who is pregnant:

• you must provide her with a written explanation about why she was dismissed or offer her a suitable alternative job where the terms are similar and not substantially less favourable
• if the employee has worked continuously for you for at least two years you must also show there is a fair reason for the dismissal and that you followed a fair procedure

Acas has more information on what you need to do for the dismissal to be fair.

If you select an employee on maternity leave for redundancy:

• you are legally required to give her the first option on any suitable alternative work which is available
• she must be considered before any other employee
• it is your responsibility to identify a suitable alternative available position and offer it to your employee
• it is not enough to tell the employee to search the intranet to find a suitable alternative job

You can ask about when the employee wants to start her maternity leave but she is only required to give a definite date 15 weeks before her due date.

You must not insist maternity leave is taken earlier than planned if:

• she wants to continue working and can do so without additional health and safety risks
• she has to self-isolate, cannot come to work or is off sick for non-pregnancy related sickness
• she is off sick with pregnancy-related sickness unless she is in the last four weeks before her maternity leave starts

Do not put pressure on a worker to cut short maternity leave or confirm a return date:

• an employee entitled to maternity leave must take at least two weeks compulsory maternity leave after the baby is born, or four weeks if she is a factory worker
• you must not ask a woman to work, or allow her to do so, in this compulsory period - she is entitled to return any time after that, provided she gives you eight weeks’ notice
• employees are legally entitled to take up to 52 weeks maternity leave
• you must assume that a woman on maternity leave will return at the end of the 52 weeks unless she gives eight weeks’ notice to return earlier - the same applies to adoption leave

Don’t postpone an employee’s return to work from maternity leave unless:

• she wants to postpone it and you agree, whether paid or unpaid
• she changes the return date and has not given you the full eight weeks’ notice, in which case you can delay her return but only up to the end of the eight weeks

You must contact employees on maternity leave about:

• any reorganisation, or other changes that affect her job
• any promotion or other job opportunities, explaining what she needs to do to apply
• possible or planned redundancies or furlough that might affect her

It is best practice to:

• offer Keeping In Touch days – up to 10 days of work during maternity leave that doesn’t affect entitlement to Statutory Maternity Pay and may help with understanding changes to roles and workplaces during the pandemic

Useful questions to ask include:

• have you treated a pregnant worker differently to other employees in a way that could affect their pay, job prospects or job security?
• is there something you can do differently to ensure these unintended consequences don’t happen?
• are you monitoring the impact of your decisions on pregnant women and breastfeeding mothers?

More help

For more information on organisations who can help employers and employees contact:

HSE

ACAS

Pregnant Then Screwed

Maternity Action

Working Families

TUC