Put on furlough while pregnant

[DesK]

I have been put of furlough for 90 days, or potentially more, by my employer. More than half the team has been retained on a 80% pay. I am with the firm for just over 2 years and have been a high performer. The selection process has not been explained and I strongly believe that I may well have been discriminated because of my pregnancy. I have been advised by ACAS that I can start questioning the selection process and if needed issuing a grievance letter and potentially involving Tribunal... Has anyone had any experience with similar disputes?

I don’t think people will have much experience with anything directly similar given this is brand new but I’d certainly ask them how they determined who was chosen to be asked to be furloughed. Did you think of not agreeing? Employees need to agree to it. OK there might be a risk they could have laid you off or made you redundant but it would have been much easier/less risky for them to just let you work and ask someone else!

If you’ve agreed to be furloughed that’s probably not going to help

Do you mean half the team has been furloughed or that they're still working, for a pay cut?

To he furloughed, though, you need to agree and sign a form or statement, though, so you could have said no

I started looking into the exact thing lastnight! I'd read that the time you are furlough ISNT counted towards your qualifying weeks for SMP. SO much info around, and not everything is accurate though.

Did ACAS mention anything about it affecting your SMP?

If you've been put on furlough doesn't the government pay you 80% of your pay up to £2.5k? Which is maybe less that 80% of your pay, I dint know. But how are you worse off than the people who have been retained?

They don’t get to just ‘put’ you on furlough without consent unless you have a lay off clause in your contract. Do you?

How do you feel disadvantaged? Most people are wanting to go on furlough rather than be redundant or stay at work?

Those who are still working are they WFH or is it possible to WFH? If not, being pregnant and needing to take extra care could be why you have been chosen. This might give you some info: maternityaction.org.uk/covidmaternityfaqs/furlough/

I have not signed the letter yet and considering signing under protest.

I feel disadvantaged because:

1. My salary will reduce by more than half once I start receiving the £2500 gross.
2. My work is project based, by handing over all of my projects now and potentially returning after 90 days when I am 7months pregnant I will not get them back for a month or two. Even if I only take 6 months maternity leave, I will be massively affected upon my return, needing to start from scratch.
3. I would have thought that the Equality Act counts for something in these situations.
4. Everyone is now working from home and not travelling. Therefore my performance and contributions would not be any different to anyone else right now.

So you can refuse to be furloughed but what is the alternative - redundancy?

Its not illegal to make you redundant when you are pregnant, unless the reason for the redundancy is, or could reasonably be shown to be likely to be, pregnancy. They'd have to pool you with others and select fairly if they wanted to go this route.

You need to know on what basis they selected you and put in a grievance. I'd imagine that unless they have objective criteria to support selecting you for furlough they may back track, possibly swapping you with someone else in the team seeing as they need a certain number to be retained.

I'd read that the time you are furlough ISNT counted towards your qualifying weeks for SMP.

Would you mind letting me know where you’d seen that as I had assumed that it would count unless there was also an amendment to the SMP regulations

OP I think rather than going in all guns blazing with a grievance just now I would ask them why if some people are being kept on to work why they’ve asked you to be furloughed and tell them you’d rather not agree and what is likely to happen if you say no. I’d also think it’s arguable that even a lay off clause doesn’t necessarily imply a right to furlough as well

Sorry @Elouera if that sounded arsey, I’d genuinely like to know for work!

When you say 'more than half the team have been retained on 80% pay', do you mean all those people are still having to work but with a pay cut, or do you mean they have all been furloughed and are sat at home not having to work like you, on 80% pay?

How many people have actually been furloughed? Why is it you think your pregnancy is a factor? If you've not signed, then it is entirely optional, and you should seek clarification as to what happens if you choose not to accept the offer.

For the avoidance of doubt, SMP will be calculated on pay actually received during the relevant period, so the 80% if this is what someone is getting.

@MigginsMrs- I was sure I'd read that about SMP, but may well have just misread it as only receiving 80%, therefore your SMP 'may' also be reduced due to this. Here is another topic on it I found, but not the one I'd originally read:
If I’m off work on Statutory Sick Pay (SSP) or on furlough, does that count towards the 26 weeks continuous service for qualifying for Statutory Maternity Pay (SMP)?

Yes, any weeks on SSP or on furlough count as continuous employment. In order to qualify for SMP you must be employed by the same employer for at least 26 weeks by the 15th week before your baby is due. If you are on SSP or on furlough during part of that period it will still count towards your continuous employment. But bear in mind that SSP is below the earnings threshold for SMP, so it may affect your average earnings, see question above. If you are on furlough and receiving 80% of your normal pay this will also affect how much SMP you will get.

@ Flowery
What I mean is that 15people in the team are still working reduced 4day weeks and getting paid the 80% of their actual contractual salary. While 9 people have been put on furlough which in my case works out about 40% of my contractual salary.
With regards to the selection process there has been no information and considering my performance and the relative number of projects compared to other colleagues I cannot find a straight forward factor why I am in the group that is furloughed.
Anyway I will be sending an email asking for further clarifications and taking it from there.

It seems like some employers are using any old reason to furlough staff just now because they are terrified that their business will go down the pan.

I had to ask to find out why I got furloughed as I didn't meet the criteria used. They perceived I may have childcare issues. I didn't (couldn't make me redundant on those grounds but apparently it's ok for furlough). However it didn't seem like a good idea to kick off about it and risk actually being made redundant. I'm on full pay though and I was assured I'm very likely to return to work in a couple of months.

Ask for clarification from your employer, raise your concerns about your role and also your income re. maternity pay/allowance as it will be significantly reduced from normal.
Read info on the ACAS website and seek guidance from your union if you have one. Remember that being pregnant doesn't afford you immunity from furlough or redundancy so tread carefully in case they decide redundancy is their only alternative for employees who won't agree to be furloughed.

Good luck. This is an awful time for employees and it must be so worrying being pregnant as well

It looks like I am the only person in my job role to be furloughed. I'm pregnant. I'm guessing this is why they are furloughing me. It feels like discrimination but I'm not sure who to talk to about it. My union is only accepting email enquiries now, I've heard nothing back and the deadline to accept is tomorrow. Has anyone seen any clear advice anywhere about furloughing vulnerable groups simply because they are vulnerable and can't work? I've been searching but not found much!

In the majority of cases we’re dealing with, it’s more like a fight to be furloughed rather than the other way round. So many employers are prioritising people they understandably perceive as more vulnerable, such as pregnant women.

But if you’d pregnant and would rather stay at work, make that clear straightaway.

@Sunnydays60
You can try to call ACAS www.acas.org.uk/contact
when I called them i didnt even have to wait that long. They dont give you legal advice but they share a lot of information you are probably not familiar with and perhaps it will help.
With regards to not accepting the furlough is rather tricky, as the alternative seems to be to request to return to work within 4 weeks or to make you redundant... there may be other options but I have not found them yet.
Further steps will include sending emails trying to resolve this amicably, then sending grievance and eventually taking the case to a Tribunal... If you can have it in writing that they put you on furlough for reasons related to your pregnancy it is a clear case of discrimination apparently and you can then proceed as far as you wish. Most employers though will never admit that openly.. I hope this helps a little, but do contact ACAS and any impartial HR person you may know as at least it helps to understand your options better, Good luck

"With regards to not accepting the furlough is rather tricky, as the alternative seems to be to request to return to work within 4 weeks or to make you redundant."

They'd only be able to make you redundant if this was a genuine redundancy decision and the selection was fair. Not sure why you think you need to return to work within 4 weeks, what do you mean? If your maternity leave hasn't started then you don't need to 'return' to work do you?

@Flowery
thank you for your interest in this conversation but I am increasingly confused as to where you are going with your comments.

• with regards to the options on refusing the furlough I am repeating information I have got from ACAS. If you have another reliable source please share as I am sure we are all eager to learn.
• As for why people are not grateful to be put on furlough, I believe it should be rather obvious. A major cut to ones salary is not welcome. So unless people are on, or close to, the minimum wage the financial impact is huge. So is the impact on their career, especially for women at the start of their pregnancy.
• Also an employer should not be making the decision to "protect" and disadvantaging pregnant women impacting their income and career. This is another information from ACAS that this is a clear case of discrimination with all the implications this can have on an employer should the employee choose to pursue.
• @Anyone interested, below are relevant links I got sent by ACAS after speaking to them:

www.acas.org.uk/grievance-procedure-step-by-step www.acas.org.uk/lay-offs-and-short-time-working www.acas.org.uk/pay-and-wages www.acas.org.uk/changing-an-employment-contract (Pregnancy and Maternity discrimination): archive.acas.org.uk/index.aspx?articleid=5271 (Asking and responding to questions of discrimination in the workplace): archive.acas.org.uk/index.aspx?articleid=4971

1. A reliable source for what? What have I said that you would like a source for? I've asked you why you would need to return to work if you are not actually off work in the first place.

If there is a lay off clause in your contract and you are laid off, if the lay off continues for 4 weeks you are entitled to claim redundancy. That's the only 4 week thing that is relevant, but in your case it isn't because my understanding is you are being asked for consent to furlough you, you are not being laid off forcibly.

1. I didn't make any comment or show any confusion as to why people don't want to be put on furlough. It's quite obvious why you don't want to be. I'm just commenting that in the majority of cases we've seen, people do want to be, which is why many employers aren't going through rigorous selection processes and giving lots of explanation. It's not at all true to say that only people who are at or close to NMW aren't disadvantaged. The cap equates to about a salary of £30k, so only people on more than that will be disadvantaged.

1. With regards to whether employers should be perceiving pregnant women as vulnerable and therefore furloughing them, that's a matter of opinion. In your case, you don't want to be, therefore you should (and are) challenging it. Whether your pregnancy is the reason you've been chosen I have no idea at all, you'd have to ask your employer. In many cases, pregnant women have no desire to attend work, either because they are concerned about the virus, have other children off school/nursery and need to be with them anyway, and/or aren't feeling great and are glad of the opportunity not to work. Just because you don't feel the same way as you are in a small minority who are higher earners and want to be at work doesn't mean the majority don't. You have to address your own situation, and as I have advised, ask your employer for clarification on why you were selected, and make clear that you would rather stay at work. Then decide how to act.