FAQs – MATERNITY RIGHTS DURING COVID-19

If you are pregnant or currently on maternity leave the current coronavirus pandemic is sure to have caused extra worry from both a health and financial prospective. This article deals with a number of the most common concerns regarding pregnancy rights and maternity rights during this time.

  1. I am pregnant but have been asked to come into work – Can I be dismissed for refusing to come into work?

Government guidance states that pregnant employees should work from home if possible. If you do a job that it is not possible to do from home your employer must continue to follow health and safety regulations and consider the risks during your pregnancy which may include carrying out a risk assessment or looking for alternative work on the same terms and conditions. A pregnant woman is entitled to be suspended on full pay if the employer cannot meet health and safety regulations. If your employer cannot ensure a safe working environment for you, and forces you to remain in work, you may have a claim for pregnancy related discrimination against your employer.  If you are dismissed for failing to come to work, you may have a claim for unfair dismissal if your employer has failed to follow health and safety regulations.

  1. Can I be on furlough as well as, or instead of, maternity leave?

Yes, but an employee on maternity leave is still only entitled to receive statutory maternity pay (SMP) at the full rate. If you are contractually entitled to occupational maternity pay, ie pay over and above SMP, your employer can place you on furlough and claim 80% of the contractual maternity pay that the employee receives.

  1. My maternity leave is due to finish during April/May, but schools are still closed so I cannot start back at work yet. What can I do and what will my employment status be?

An employee can be placed on furlough if they have caring responsibilities which includes looking after children. You should discuss this with your employer.

  1. If I am on unpaid maternity leave can I move to furlough when it is over?

Yes, if your employer has placed other employees on furlough you are entitled to be furloughed. It may be maternity discrimination if they refuse.

  1. How do you calculate maternity pay during the pandemic?

SMP is calculated in the usual way. Therefore, if you are on furlough and receiving 80% of your normal pay this will affect how much SMP you will get.

  1. My employer has furloughed everyone and is paying them only 80% of normal pay. They have now started paying my SMP at 80% of the normal rate. Is that right?

No, you must receive the full SMP. Speak to your employer first and then, if they refuse, you can make a complaint to HMRC Statutory Payments Disputes Team to ensure you get paid the full amount.

  1. I am on maternity leave and only getting SMP – should I be paid 80% of my normal salary?

No, you are only entitled to receive SMP whilst on maternity leave. If you wish to receive 80% of your normal salary you would have to end your maternity leave and then be furloughed. However, as soon as the furlough scheme ends you will be required to go back to work and cannot restart your maternity leave.

Should you have any queries in relation to the article please contact our Employment Department:

John McShane – john.mcshane@mtb-law.co.uk

Judy Hamilton – judy.hamilton@mtb-law.co.uk