Recommendation 7

HM Government · verbatim extract Rejected

Entitlement to Statutory Maternity Pay (SMP) is determined in part by a calculation, carried out by employers, to determine an employee’s average earnings over a set period. 8 The impact of Covid-19 on maternity and parental leave: Government Response For SMP purposes, ‘earnings’ are defined as gross earnings and include any remuneration or profit derived from a person’s employment, including sums such as Statutory Sick Pay, alongside other payments such as overtime, bonus payments and arrears of pay. Where the calculation reference period included time on furlough, the entitlement threshold might not have been met or the amount of money received during the first 6 weeks of SMP might have been reduced. As the Coronavirus Job Retention Scheme is new it was appropriate that the earnings calculation was adjusted to accommodate this and ensure women on furlough were not detrimentally affected. However, women claiming Statutory Sick Pay during their earnings assessment period is not a new situation and there are no plans to change the way that SSP is treated as part of the average weekly earnings calculation for SMP. We are aware of anecdotal evidence which suggests that some employers incorrectly asked pregnant women to take sick leave to reduce the risk of them contracting Covid-19 in the workplace. This approach is at odds with the longstanding obligations on employers to carry out health and safety risk assessments for all pregnant employees. Such assessments should have taken into account the increased risk of serious illness for pregnant women identified in public health guidance. The guidance published by HSE has been updated to explain employers’ responsibilities to their staff during the Covid-19 pandemic. The guidance is clear and where an employer has incorrectly put a pregnant woman on sick pay, for example, because her job could not be done from home, they should consider whether it would be appropriate to invite their pregnant employee to return to work (if appropriate controls are now in place). Where appropriate controls cannot be put in place, they should suspend their employee on full pay. Where there is evidence that an employer has deliberately flouted the law, HSE will consider taking enforcement action and will hold employers to account if they fail to comply with the law or their responsibilities. If anyone has lost out financially as a result of their employer not acting in accordance with their legal obligations, they can and should seek redress through the employment tribunal system.