Recommendation 4

HM Government Not Addressed

It is essential that employers take appropriate steps to ensure their workplace is safe for everyone who works for them, including understanding and fulfilling their obligations towards pregnant women in their workforce. While, Covid-19 has given rise to unprecedented challenges for employers, we have been clear throughout the pandemic 6 The impact of Covid-19 on maternity and parental leave: Government Response that Covid-19 has not changed their obligations towards pregnant women. Guidance for employers on their responsibilities towards pregnant women during Covid-19 has been published on Gov.UK by the Health and Safety Executive. This guidance makes it very clear to employers that, as has always been the case, if they cannot implement the appropriate measures to keep a pregnant worker safe, they will need to suspend them on full pay. During the Covid-19 outbreak, pregnant women were defined as clinically vulnerable by Public Health England, Health Protection Scotland, and Public Health Wales. Stringent social distancing measures were recommended for these women to reduce the risk of severe illness from Covid-19. Anecdotal evidence suggests that some employers have incorrectly asked pregnant women to start their Maternity Leave and Pay early, or to take sick leave and pay or unpaid leave when they should have carried out a risk assessment and taken appropriate action based on that assessment. The requirement to carry out a risk assessment is not new. It is a longstanding health and safety requirement and employers cannot avoid it by asking or requiring their employees to take time off work. Where a pregnant woman was asked to shield because she was considered to be clinically extremely vulnerable (e.g. where she had significant heart disease - congenital or acquired), employers should also have taken account of this in their risk assessment process and if the necessary control measures could not be put in place, such as working from home, they should have suspended the pregnant employee on paid leave, in line with regulation 16(3) of the Management of Health and Safety at Work Regulations 1999. While the shielding programme has been paused, it is still the case—as it always has been—that employers must carry out the appropriate risk assessments and put the appropriate measures in place. Employers are not required to suspend pregnant employees on full pay if appropriate control measures can be put in place. The HSE guidance for employers on their responsibilities towards pregnant women during Covid-19 can be found at: https://www.hse.Gov.UK/coronavirus/working-safely/protect- people.htm The HSE have also published guidance for employers on what to include in their COVID-19 risk assessment including considerations for vulnerable workers. This risk assessment forms part of the wider suite of guidance that the Government has published on Safer Workplaces and which can be found here: https://www.Gov.UK/guidance/working-safely- during-coronavirus-covid-19 Where a pregnant woman started her Maternity Leave early, or was placed on unpaid leave or sick leave, and she believes that her employer has acted in breach of their legal obligations, she can make a claim to an Employment Tribunal. This route is also open to pregnant women who have been required to work in circumstances where sufficient Covid-19 controls have not been put in place. While a three-month time limit applies to the presentation of Employment Tribunal claims, the tribunal can allow claims out of time. Their decision will, amongst other things, be based on the individual circumstances of the case, and where a pregnant woman or new mother wishes to make a late claim they should provide all relevant information, including details of any circumstances that relate to the impact of Covid-19 and lockdown, and provide supporting evidence to the Employment Tribunal if available. The impact of Covid-19 on maternity and parental leave: Government Response 7 Further information on making a claim to an Employment Tribunal can be found at: https://www.gov.uk/government/publications/making-a-claim-to-an-employment- tribunal-t420 In 2014 the Government introduced Early Conciliation—a free, impartial, service provided by the Advisory, Conciliation and Arbitration Service (Acas). This service aims to help parties resolve their disputes quicker and avoid the costs and time delays that are associated with an Employment Tribunal hearing. Potential claimants are only required to notify Acas of their dispute, they are not obliged to take part in Early Conciliation and either the claimant or respondent can stop the process at any time. Further information on Early Conciliation can be found at: https://www.acas.org.uk/ early-conciliation