Providing legal advice on pregnant women’s rights during the Covid-19 pandemic

Press release issued: 30 April 2020

Earlier this month Professor Michael Ford QC and Karon Monaghan QC, Matrix Chambers, provided legal advice to the UK charity Maternity Action about the treatment of pregnant women under the Statutory Sick Pay regulations and the Coronavirus Job Retention Scheme.

The advice followed many distressed calls to the charity's Maternity Rights Advice Line from pregnant women who had been sent home on unpaid leave or Statutory Sick Pay. Maternity Action sought the advice on the legal basis for paying Statutory Sick Pay and whether the Coronavirus Job Retention Scheme (which enables employers to furlough employees if their businesses are severely affected by coronavirus) prevents a person on Statutory Sick Pay from being placed on furlough.

The legal advice confirms that:

‘...pregnant women sent home by their employers after 16 March in the mistaken belief that they were required to self-isolate and who were paid SSP were not eligible for SSP. Nor, in the absence of an agreement to furlough them, was there a lawful basis for requiring them to stay at home. Since these women were not furloughed, they are entitled to their full pay for the period they were absent from work until their return to work or until there is a valid agreement to furlough.’

In addition, pregnant women have protection under health and safety laws. If a woman has notified her employer of her pregnancy she is entitled to a risk assessment. If the employer is unable to provide safe work that complies with Government guidance on social distancing, including being able to work from home wherever possible and avoid public transport, a pregnant woman is entitled to be suspended on full pay under s.68 Employment Rights Act 1996.

Furlough is available to all UK employers whose operations are severely affected by coronavirus and can be used for those unable to work during the pandemic including employees whose children are off school or who are shielding an extremely vulnerable person (this includes pregnant women with heart conditions who will have been notified).

The full legal advice is available here in PDF format.

Further information

Maternity Action is the UK’s leading charity committed to ending inequality and improving the health and wellbeing of pregnant women, partners and young children – from conception through to the child’s early years. It delivers free, specialist advice on employment rights, maternity pay, maternity benefits and the rights of migrant and asylum seeking women through its telephone helplines. You can get free advice from the Maternity Rights Advice Line on 0808 802 0029 (if you live outside London) or 0808 802 0057 (if you live or work in a London Borough).

Professor Michael Ford QC is a Professor of Law, a QC at Old Square Chambers, a fee-paid Employment Judge and a Deputy High Court Judge. His principal areas of research and practice are labour law, EU law and human rights. He is on the Equality and Human Rights’ Commission’s ‘A’ panel of specialist counsel and acted for them in the Supreme Court in the successful challenge to fees in the employment tribunal. In practice, he has over 60 reported cases, including cases in the House of Lords…’, Supreme Court, Court of Human Rights and the European Court of Justice.

The Law School Coronavirus Research Hub brings together the work of academics at the forefront of global efforts to mitigate against the impact of COVID-19 through law and policy adaptation, and to understand the immediate and longer-lasting impacts of the pandemic.