Maternity leave and furlough: what options do HR have?

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The Coronavirus Job Retention Scheme rules are complicated enough, without the added layer of complexity surrounding maternity leave and new and expectant mothers’ rights. Beverley Sunderland attempts to dispel some myths and provide clarity around whether they can be furloughed.

If being pregnant was not a worrying enough time, an added layer of anxiety has been introduced by the Covid-19 crisis, aside from the obvious concern about catching it.

Government guidance states that those who are pregnant are “vulnerable”, and this has prompted some employers to send home their pregnant employees on statutory sick pay or without pay at all, mistakenly believing they all needed to be shielded or to self-isolate.

However, only women who are pregnant with significant heart disease or other conditions referred to in the government guidance need to be completely shielded. The guidance specifies that only if a pregnant woman is showing symptoms of coronavirus, lives in a house with someone with symptoms, or who has tested positive, does she have to be in self-isolation. But despite this, helplines were inundated with calls from distressed women who had been sent home on little or no pay simply because they were pregnant.

Employers are expected to do a risk assessment for women who are pregnant, and because Covid-19 is an infectious disease then the level of risk at work must be “in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace”. Given that the government advice since 26 March 2020 has been to work from home where possible, avoid all unnecessary travel and to keep two metres apart, then it is arguable that a woman still at work is at a greater risk of catching the virus than at home. If this is the assessment then they should be found alternative work. If there is no alternative work, then the law says that she should be sent home on full pay.

Then along came the Coronavirus Job Retention Scheme (CJRS) which allows employees to be sent home (furloughed) on 80% of their normal pay or £2,500 a month, whichever is lower. Employees cannot demand it, as it is still entirely up to the employer, although normal rules of discrimination apply.

Confusion and misunderstanding

As this is a new scheme there was naturally confusion and misunderstanding to start with, as it was developed at break-neck speed and without the luxury of consultation.

An early question was whether a woman on maternity leave could be furloughed. Women were reporting that Acas were advising them to bring their maternity leave to an end if they wanted to be furloughed. This is not quite right. The answer for HR depends on whether the employee receives enhanced contractual maternity pay. If she does, then an employer can furlough her and claim back 80% of this enhancement. If the employee only receives statutory maternity pay (SMP) then she must not be furloughed because the employer can already claim this back from the government.

Originally, the CJRS guidance said that if an employee was pregnant, on furlough and on reduced earnings in the two months before the qualifying week – and so used to calculate statutory maternity pay – then their SMP would be reduced. This was rectified by legislation that came into effect on 25 April, making it clear that for the purpose of calculating SMP the actual earnings and not the furloughed earnings must be used.

However, there will be some women who were pregnant and on furlough between 1 March and 25 April and their pay during this period was reduced – this reduced figure will be used to calculate their SMP for six weeks when they eventually go on maternity leave.

Many women who have exhausted their SMP and are not receiving an income are seeing their colleagues being furloughed and may want to return to work early. To do that, they need to give eight weeks’ notice. However, if an employer failed to write to them within 28 days of the date they received the employee’s notification to go on maternity leave, or within 28 days of when their maternity leave started to tell them when their 52 weeks’ maternity leave ends, the employee does not have to give notice to return.

But, a woman returning from maternity leave early should not assume she will be furloughed and should be advised to speak to her employer first.

If in any doubt and to avoid leaving an employer open to claims of discrimination, HR should take legal advice. For further guidance, Maternity Action is also a good source of advice.