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Pregnant Employees Sent Home on Statutory Sick Pay are Missing Out on Statutory Maternity Pay

on Friday, 21 August 2020.

The Government is coming under pressure to correct an anomaly whereby pregnant women forced onto statutory sick leave due to coronavirus (COVID-19) may wrongfully lose out on Statutory Maternity Pay (SMP).

Pregnant women are listed as clinically vulnerable for the purposes of the coronavirus pandemic. Given their status, many wanted or were asked to stay away from work during the national lockdown.

Where a new or expectant mother is sent home from work because of a workplace risk that cannot be mitigated, they are entitled to be suspended on full pay. Regrettably, women are reporting having instead been sent home on statutory sick leave, at a reduced rate of pay. This has a potential impact on their entitlement to SMP.

Furlough Leave

Regulations surrounding maternity and other statutory parental leave allowances and pay came into force on 25 April 2020. Under the regulations, furloughed women will not be disadvantaged by salary reduction during furlough for the purposes of eligibility or rate of SMP. An employee's normal, pre-furlough, weekly earnings will be used to calculate the rate of SMP where they are furloughed before maternity leave.

Coronavirus guidance employers

Statutory Sick Pay

There is no similar protection to ensure pregnant employees are not disadvantaged as a result of being sent home on Statutory Sick Pay (SSP) due to the pandemic. The weekly rate for SSP is £95.85. However, to be entitled to SMP, a pregnant woman's earnings must be on average at least £120 a week. This means pregnant women sent home on SSP may no longer qualify for SMP.

Best Practice

Now that lockdown is easing and shielding is paused, it may be reasonable for pregnant women to return to the workplace if remote working is not possible. If so, the relevant COVID-19 secure guidelines need to be followed and individual risk assessments should also be carried out. Depending on the circumstances, medical or occupational health advice might also be necessary before a pregnant employee returns to work.

Ultimately, if a significant risk posed by coronavirus is identified and cannot be mitigated, thought should be given as to whether it is possible to alter the woman's working conditions or hours, or otherwise to offer suitable alternative work on terms that are not substantially less favourable. Where suitable alternative work is not available, or if it is reasonably refused by the employee, they should be suspended on full pay.

For specialist legal advice regarding the treatment of new and expectant mothers, please contact Helen Hughes in our Employment Law team on 07741 312 352, or complete the form below.

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