MNHQ here: free legal clinic with Maternity Action on maternity and parental rights at work during the Covid-19 crisis

[BojanaMumsnet]

Free online advice clinic 1 - 5 June 2020

Mumsnet and Maternity Action are teaming up to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers.

Maternity Action reports huge demand for its advice line, especially topics such as redundancy during maternity leave, return to work and maternity pay, and on Mumsnet's Talk forums, the topic of employment rights is a hardy perennial.

The clinic will respond to this demand in a hopefully innovative way, providing free, accurate, public advice online and raising awareness of parents' rights at work. It will also enable Maternity Action and Mumsnet to identify trends and produce permanent content to address areas in which employers and workers could benefit from clear, upfront guidance.

The clinic will take the form of a 'Q&A' session on Mumsnet, with members of the public posting questions about your questions on pregnancy, maternity and parental rights at work during the Covid-19 pandemic on a dedicated public discussion thread. Specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice.

The clinic will run for a week from Monday 1st to Friday 5th June and will be held on a quarterly basis. We will do our best to provide all answers during the week but, at the latest, by the Monday of the following week. You can find information on where to go for more help once the clinic has ended here: Where-to-go-for-more-help-2.pdf

What to do if you’d like to post a question

1. If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online during the week of the clinic. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use the private message facility to disclose any information you would prefer to keep off the public forums.
2. Please send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.
3. Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. You can fill out the survey here: www.surveymonkey.co.uk/r/CX28XKX

Ts and Cs – please read

The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here: Where-to-go-for-more-help-2.pdf

Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.
The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here: maternityaction.org.uk/wp-content/uploads/Complaints-Policy.pdf

@Bradlejson

I am now in 20 week of pregnancy and working on full time contract (11 years). After risk assessment conducted end of March I was asked for make a choice to stay at home for a 12 weeks or back to work as usual. Change a role at work or satellite work from home has not been proposed. It's busy warehouse place and a picker job role. I have not been informed what kinds of changes have been made on site to minimise risk, and have been advised to stay at home. Also I have been informed I will get SSP only pay. The first formal letter (template used from maternityaction website) to HR department with the request to put me on furlough scheme or suspend on full pay has been sent. Respond from HR back after 20 days and say I am staying on SSP because I am not EXTREMELY VULNERABLE person. After consulting the problem wit ACAS advisor, I sent another letter to HR department. During the consultation of my case with an ACAS adviser, I was informed when the risk was not completely removed in the workplace and, I as a pregnant woman are in a high risk group, and it is not possible for me to do my job safely in the workplace when the risk is not completely removed, I am entitled to be suspended on full pay for as long as the risk remains. Another respond from HR was I am not eligible to be a furlough or suspend on the full pay, they continue to paying me SSP. Did the company make the mistake of letting me go for isolation and pay SSP only ?

Dear Bradlejson

I understand that you are employed as a picker in a warehouse environment. On that basis I am very surprised (in view of the government instructions in late March and guidance) that your employer deemed your workplace to be safe for you as a pregnant employee at that point. The instruction was that people should remain at home and lots of businesses temporarily suspended operations as a result.

If your employer continued to operate (on the basis it was an essential service etc) but was unable to implement immediate social distancing and other measures to keep you safe at that time, my view is that they should have placed you on medical suspension on full pay as you were unable to work at home.

Assuming you were on your employer’s payroll before 28 February, you technically are eligible for being furloughed but it is the employer’s choice whether they do that, they are not obliged to. In your case it would have helped you financially if they had placed you on furlough.

It sounds like communication has been lacking on your employer’s part despite your attempts to try and resolve this, which is really disappointing. If your employer is saying that there is work for you to do and that you can return, then of course you need to be provided with the details of what measures have been put in place to protect you. If these are not in place yet and the risk has not been removed to the best of their ability, then again, you should remain on medical paid suspension until such time as you can work safely. Your employer can place you on furlough at the same time as a maternity suspension in order to claim help with the cost of your wages.

If you have been unable to resolve it so far by talking to your employer you could raise a formal written grievance to see if a resolution can be reached. You may have a claim for unlawful deduction of wages and pregnancy discrimination if there are risks at your workplace and your employer has failed to take action and you should seek further advice. You will need to start a tribunal claim within three months (less one day) from the date you are complaining about. If you have been on SSP since late March, you will need to take action fairly quickly. You must contact ACAS within the time limit to start Early Conciliation. You can telephone ACAS on 0300 123 11 00.

I hope that helps you to resolve it soon.

@rachiemill

Hi I work in a care home, Iam currently 22 weeks pregnant. We now have confirmed cases of covid19 within the home. My manager is telling me that I still have to go into the confirmed patients rooms and do direct care with them regardless of being pregnant. They have said that pregnant ladies are no longer classed as vulnerable as there is no evidence to support it so no reason why I shouldn't be in direct patient contact with positive cases as long as I wear ppe. I don't feel comfortable being in direct contact with them. Iam happy to go to any one else, there is more than enough staff on duty at any time for me to to be in contact. Also I've had a risk assessment when I first found out I was pregnant before covid19 became properly known however I haven't had a risk assessment since guideline have changed and do not have a risk assessment in place that mentions covid and how they will reduce the risk to me or to outline any steps to minimise the risk. Iam unable to keep social distance from people within the workplace and this has not been addressed.should I have a risk assessment to include covid? Thank you so much for any help you can give me

Dear rachiemill

Your employer has a duty to take account of risks to you whilst you are pregnant, and these risks include COVID19. You may want to refer them to the NHS information for pregnant women here www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk/pregnancy-and-coronavirus/. This confirms that pregnant women are included on the list of those at higher risk from COVID19 (clinically vulnerable). Alternatively, your GP or midwife may be prepared to write a letter to your employer explaining the risk to you, and requesting that your duties are adjusted so you do not come into contact with COVID19 positive patients.

You may want to refer your employer to the HSE FAQs for expectant and new mothers here www.hse.gov.uk/mothers/faqs.htm It makes clear that if a risk assessment may no longer be valid, it should be updated. If your risk assessment was carried out prior to the discovery of COVID19 positive cases in the home, or if it doesn’t mention COVID19 because it wasn’t considered a significant risk at the time, it should be updated to take account of this new risk.
If there is a significant risk present, and it seems clear that there is, your employer should adjust your working conditions or offer you alternative work to remove that risk. If this is not possible, you should be suspended on full pay. However, this may not be necessary in your case if work can be reassigned to ensure that you do not deal with the COVID19 positive patients, and maintain a safe distance from those who do.

There is a model letter on the Maternity Action website that you can use to write to your employer to ask for a risk assessment: maternityaction.org.uk/covidmaternityfaqs/health-and-safety-at-work/ Ultimately if you are not able to resolve this with your employer, you should seek further advice as there are strict time limits of three months (less one day) for starting an employment tribunal claim. If you think there are health and safety risks at your care home you might also want to contact the HSE, which you can do here: www.hse.gov.uk/contact/concerns.htm

There is more information on time limits and where to go for more help here: Where-to-go-for-more-help-2.pdf

I hope that helps to resolve it soon.

@maternityactionfreeadvice
Thank you very much.
I am being told my Notice Pay will just be my Maternity Pay which if I am understanding you correctly is incorrect.
I’m also being told that the notice they have to give me is based on my contract notice period and NOT statutory redundancy notice. Redundancy pay has also not been mentioned. The whole process seems fairly muddled on their part.
We are still in consulting stages but it’s highly likely to progress.
Thank you for your advice, I just hope I don’t need to fight it!

@Backhometothenorth

My partner and I are both working from home with two children and managing to juggle the working week by carefully planning meetings around each other's diaries and I have moved some calls to the weekend where possible. I am careful not to have my children with me on client facing calls but today was on a three hour team meeting and had to be in the same room as my three year old as my husband also had calls. I was very upset to receive a text from my boss to say that my daughter should not be visible and she later went on to discuss this with the whole team which was just awful. Should I understand from this that I should have asked for furlough? We have really worked hard to try and make this work and I feel humiliated.

Dear Backhometothenorth

In the first instance I would suggest that you ask your manager for a discussion about what her expectations are surrounding team meetings, in light of your current challenging home working situation. You could use the discussion as an opportunity to explain to her that you are trying your best to juggle childcare and work commitments, and if she has concerns about your children being present at the same time as team meetings/client calls ask her for suggestions as to what she deems appropriate (and workable for you) in light of the situation. You could explain to her how her comments to the team about your daughter appearing on the call made you feel. Hopefully she will acknowledge that she did not handle the matter sensitively, apologise for upsetting you and work with you to establish a practical solution moving forward.

It may be during that discussion that you explain to her that you have been trying your best to work from home alongside your childcare commitments and raise the point that her comments and attitude to the situation left you wondering whether you ought to be put on furlough leave. However, the furlough scheme is a job retention scheme therefore if your work is still available and you are able to work from home, it is unlikely your employer will consider that you are eligible under the furlough scheme. The latest date for joining the furlough scheme is 10th June and if you did feel that this would be a good option for you, you could ask your employer but, as mentioned, you can't insist on being furloughed.

If after the discussion you feel that she did not listen to your concerns or assist you with understanding her expectations moving forward, you would be entitled to raise a grievance highlighting your concerns.

I hope this helps.

@AnnaBegins

I work for a large UK based company. Due to covid-19, they have told all employees to take half their remaining holiday by end of August. Employees who have booked holiday post-August have that removed from their total remaining days to be halved e.g. If 25 days allowance, 6 taken in Feb, 5 booked for October, the employee would need to take half of 14 days (so 7) before end August. However those on maternity leave have no option to pre-book leave for once they return, as we're not assigned to a team/manager. So when I return in late August, I'm being told I need to take 4 of the first 5 working days as holiday, leaving me none for the rest of the year (bar prescribed Christmas shutdown). If I had been in work, I would have had access to book holiday in advance for e.g. the first week of half days at school, and October half term, and would probably only have 1 or 2 days left to book by now, based on previous years' behaviour. But I'm on maternity leave, so at a disadvantage. Our HR dept cannot make their mind up how to treat those on maternity leave and I have received conflicting responses. Am I correct that they cannot place those on maternity leave at a disadvantage by not allowing them the same opportunities as employees in work? Thank you.

Dear AnnaBegins

Thank you for your enquiry.

To treat a woman unfavourably on the grounds of her pregnancy or maternity leave is unlawful discrimination. It would be for you to show that the unfair treatment was because of pregnancy or maternity leave; which in this case it is, as had you not been on maternity leave you would have been able to pre book leave and take time off when convenient and necessary for you.

There may also be a possible claim for ‘indirect’ sex discrimination. This is when your employer applies a Provision, Criteria or Practice (PCP) to you, which places you at a disadvantage when compared to someone who is not on maternity leave. The requirement to take half the annual leave before August, which you are not able to do is arguably a ‘PCP’.

You say that you have received conflicting responses from HR. What I suggest you do is send an email to your HR department setting out that you believe that the application of this requirement is placing you at a substantial disadvantage when compared to colleagues who are not on maternity leave and therefore you believe that this requirement is unlawful. At this stage I am not clear when your annual leave year runs from and to.

I advise suggesting two options to your HR department:

(i) Allowing you / those who are on maternity leave the option to submit their annual leave date requests so that this information can be input into their centralised database / HR software. There should be no need to permit you access or for you and others to need to be assigned a line manager for this to take place. That way everyone is being treated equally.
(ii) If option (i) is not possible, then on your return to work there should not be a requirement for you to take all the annual leave as 4 days in every working week and for you to be able to carry your holidays over into the next annual leave year.

I hope this helps, if this approach is unsuccessful then a more formal approach may need to be considered by raising a grievance. There is more information on time limits and where to get more help here: Where-to-go-for-more-help-2.pdf

@Kacie23595

Hi, There are talks of making redundancy’s at my work. We as a company sell stationary to companies/offices in London so as you can tell it covid has hit us hard. My question is, if I was to be made redunant while on maternity leave (I’m only 2 months into my 9 months leave) will I still be entitled to SMP for the full 39 weeks? I’m worried they will make me redundant and I will loose my entitlement :(!! Thank you, Kacie

Dear Kacie

Thank you for your query. You remain entitled to the full 39 weeks of Statutory Maternity Pay even if you are made redundant during your maternity leave. Your employer recoups all of your SMP from HM Revenue & Customs and they must still pay it to you. Your employer can get advance funding for your SMP if they need it from their HMRC Accounts Office.

I hope that helps.

@Danielle7732

Hi, I have been on maternity leave since September and it ends on June the 15th, all my employees have been furloughed expect a few who the company have asked to go back first since they are slowly opening! My employer is saying I can’t be furloughed because they can’t afford it and then said it’s because I’m on maternity until the 15th of June and the cut off is the 10th, is there anything I can do? I can’t work because my child care can’t be accessed at the moment! Thank you

Dear Danielle7732

Thank you for your query. You raise an important question as Maternity Action is very concerned about the impact on parents returning from leave who will be unable to be furloughed after 10th June. This is the latest date for adding a new employee to the scheme as an employee must have been furloughed for at least three weeks when your employer claims under the Coronavirus Job Retention Scheme on 30th June. Employers cannot make a claim for any new employees (who have not already been furloughed) after 1st July 2020.

In your situation, I think that your employer can furlough you in time. Employers are able to furlough a parent at the same time as they are on maternity, adoption or shared parental leave in order to claim help with the costs of any occupational maternity, adoption or shared parental pay. However, whilst you are on maternity leave you are only entitled to whatever maternity pay you qualify for e.g. SMP or Maternity Allowance.

This means that your employer could put you on furlough immediately (even though you are still on maternity leave) so that you will have completed 3 weeks on furlough by 30th June. Their claim under the Coronavirus Job Retention Scheme will only cover your wages from the end of your maternity leave on 15th June until 30th June. You haven't said what type of maternity pay you are receiving but if you are receiving SMP your employer would claim your SMP separately from HMRC. If you are on unpaid leave you will not be paid for the period up to 15th June.

Unfortunately you cannot insist on furlough as it is up to your employer, however, if other staff have been furloughed and you are unable to work for childcare reasons, you should seek further advice as such a requirement may be indirect sex discrimination. If you're not able to go onto furlough and you cannot work for childcare reasons, your other options will be to ask to use up any annual leave that has accrued during your maternity leave, to take the full period of 52 weeks' maternity leave if you still have any maternity leave left to take or you can give 21 days' notice to take Parental Leave. Parental Leave is 18 weeks' unpaid leave, per parent, per child, up to your child's 18th birthday: www.gov.uk/parental-leave. You may be eligible for Universal Credit while you are on unpaid leave.

I hope that helps and you're able to resolve it quickly.

@Rainbowchampagne

Hello, my work is currently making redundancies company wide for a role I do, there is estimated to be 10 redundancies in total. They have advised part of the criteria will be annual reviews and monthly 121s. I am currently on Maternity leave, my concern is early 2019 my reviews will be great as I was not pregnant, the latter half I was pregnant and whilst I did nothing “wrong” I wasn’t go above and beyond anymore, will this be held against me?

Dear Rainbowchampagne

You are protected against pregnancy discrimination if you can show that you have been treated unfavourably because of your pregnancy or absence on maternity leave. For example, any pregnancy-related absence should not be taken into account in a redundancy situation.

You should also be aware that as you are on maternity leave you have the right to be offered any suitable alternative vacancies (under Regulation 10 of the Maternity and Parental Leave Regulations 1999). In order to avoid you being disadvantaged because of your maternity leave, this should give you first refusal of any suitable alternative vacancies before any redundancy selection procedures. If you have not been offered a suitable alternative vacancy, this may be an automatic unfair dismissal and if this was because of your absence on maternity leave you may also be able to show that this was maternity discrimination.

I hope this helps and suggest that you get further advice if you are made redundant and you think it is as a result of your performance during pregnancy or current maternity leave.

Thank you for all the questions - I hope you've found this clinic helpful! We're going to close this thread to new questions and Maternity Action will post answersto outstanding questions on Monday.

Thanks
MNHQ

@Dotty356

Hello,

I am currently 22 weeks pregnant and have been on sick leave since February due to suffering with severe HG. I received an email from work saying that due to financial implications of covid that redundancies are being made. I am the only one who works in my job title and this job has been chosen as not required and therefore will be consulted for redundancy. My company have outlined who they are keeping and my job role is no longer listed and I haven’t been offered another one. I haven’t handed in my maternity request yet and I am due to return to work middle of June. Redundancies will be announced by the end of June. I’m not sure how to proceed right now. Any advice would be most welcome.
Thank you.

Dear Dotty356

I'm sorry to hear you've been having such a difficult time.

Your employer can make you redundant during your pregnancy, providing it is a genuine redundancy situation e.g. your role is no longer needed or there is less work to do, and they are not making you redundant because of your pregnancy or maternity leave. They will need to consult with staff and go about the redundancies in a fair way, using objective criteria. If you think you have been selected for redundancy because of your pregnancy or pregnancy-related sick leave you should seek further advice. Any period of pregnancy-related sickness must not be counted as part of normal sickness absence or used in redundancy decisions. If you need to pursue a claim for unfair or discriminatory redundancy, please note that there is a time limit of three months (less one day) from the date of dismissal for starting a tribunal claim. You must contact ACAS within the time limit to start Early Conciliation.

You will need to give your employer notice of the date you want to start your maternity leave and your MATB1 maternity certificate by the 26th week of pregnancy. If you meet the qualifying conditions for Statutory Maternity Pay and you are still employed in the 15th week before your expected week of childbirth (this is when you are 26 weeks' pregnant) your employer must continue to pay your SMP for the full 39 weeks even if you are subsequently made redundant. If you are not paid SMP correctly you can claim it from HMRC Statutory Payments Disputes Team on 0300 322 9422.

If you are made redundant in order to avoid paying SMP you can also ask to make a formal complaint to HMRC as above. Otherwise, if you miss out on qualifying for SMP you can claim Maternity Allowance.

If your employer provides occupational maternity pay (on top of the SMP) any occupational maternity pay will end when your contract ends as it is an employment benefit.

Depending on your length of service, you may be entitled to redundancy pay, notice pay and payment for any outstanding annual leave. There is more information here: www.gov.uk/redundancy-your-rights

If you are returning to work before the redundancy, your employer must conduct a specific risk assessment and ensure that you can comply with current Government guidelines on social distancing for pregnant women. Your employer must make reasonable adjustments and ensure that you can work from home wherever possible. If there is no safe work you must be suspended on full pay. These adjustments must continue until your contract ends if you are made redundant.

I hope that helps and good luck.

[quote Phoenix85]@maternityactionfreeadvice
Thank you very much.
I am being told my Notice Pay will just be my Maternity Pay which if I am understanding you correctly is incorrect.
I’m also being told that the notice they have to give me is based on my contract notice period and NOT statutory redundancy notice. Redundancy pay has also not been mentioned. The whole process seems fairly muddled on their part.
We are still in consulting stages but it’s highly likely to progress.
Thank you for your advice, I just hope I don’t need to fight it![/quote]
Dear Phoenix85

The situation in relation to notice pay during maternity leave is complex. If your contract gives you notice of at least one week more than your statutory entitlement to notice, you will need to rely on your contract. Statutory notice pay is as follows: www.gov.uk/redundancy-your-rights/notice-periods

If the notice period in your contract is at least a week more you are only entitled to notice pay during your maternity leave if your contract specifically allows it (which is not very common) or your employer is willing to agree to it as part of your redundancy package. Even if your employer does pay you contractual notice pay during your maternity leave they can offset your SMP against it.

Otherwise you can rely on your statutory rights and you would be entitled to statutory notice pay as above. Your employer can also offset any SMP against statutory notice pay.

You can find a redundancy pay calculator here: www.gov.uk/redundancy-your-rights/redundancy-pay You should also check your contract to see if it provides for any contractual redundancy pay that is better than the statutory minimum.

I hope that helps and good luck!

@buffalopuff

Hi,

My organisation enforced pay cuts a month ago on all staff for the next 12 months. We were threatened with redundancy if we didn't accept, so all accepted. I was six weeks pregnant at the time and didn't feel comfortable raising this at the time, but now I'm concerned about how it'll affect my maternity leave.

According to our policy I'm entitled to six months on full pay, followed by SMP and then unpaid, but will I have to accept my reduced pay instead for the first six months?

It's already having an impact on my income as it is, leaving me unable to save for my maternity leave. I'd like to know if I can make the case to receive my actual pay (it is described as 'full pay' in the policy) on maternity leave. The alternative is likely to be that I may have to reduce my maternity leave.

I have no new contract, just a generic letter (unsigned, it was done on an opt out basis) confirming the pay cut. It does not reference changes to maternity policy.

Also, if 100% pay is reinstated while I'm on maternity leave (likely to be SMP by that point), could I request to recoup any of it at all? It feels like I'm at a huge disadvantage through no fault of my own.

Thanks for any advice.

Dear buffalopuff

Thank you for your query and further information. With regards to the variation of your pay before you go on maternity leave, as you have agreed the variation, the variation to normal pay will stand unless the way in which the variation took place breaches any terms in your main contract as to how variations are meant to take place (and even then the fact that you effectively accepted the variation may extinguish the breach).

If you have not done so already, when you inform your employer of your pregnancy, I would recommend asking them to clarify the position regarding maternity pay and whether they will pay the 100% full pay as per the maternity policy.

I note that you have mentioned that some staff have been furloughed. The furlough scheme can be used by employers to claim help towards the costs of occupational maternity pay (i.e. company maternity pay as opposed to statutory maternity pay) and annual leave - but this must be at full pay, unless it has been deemed that the maternity policy has been varied. Occupational maternity pay can be reduced (by agreement) whilst an employee is placed on furlough leave but cannot fall below the statutory maternity pay amount (which is 90% of your average earnings for the first 6 weeks).

However, the Furlough scheme is currently scheduled to close on 30 October 2020, therefore your employer may not be able to claim the cost of paying your full occupational maternity pay for the full six months. Also, the latest date that employers can place new employees on the Furlough scheme is 10 June 2020 so if you have not previously been placed on furlough your employer will not be able to claim help with the costs of your occupational maternity pay through the furlough scheme anyway.

If the pay cut is reversed whilst you are on occupational maternity pay (subject to what your maternity policy states), broadly speaking, and you are paid at a lower rate than your colleagues who are working, this could be potentially discriminatory because you will be disadvantaged on the basis that you are on maternity leave (although there are sometimes limitations on claims about effects on pay due to being on maternity leave).

If, however, the pay cut is reversed whilst you receive statutory maternity pay ("SMP"), you will only be entitled to receive SMP because it is the rules surrounding SMP that will apply to your pay, not your employer's variation of general wages.

It is also worth flagging that whilst you are on maternity leave, you will accrue holiday that you can take when you are scheduled to return to work. That should be paid based on the rate at the time you take it, so if the pay has increased by then you should be paid in full.

In any case, if you have any concerns or disagree with your employer's approach, I would recommend trying to communicate them informally in order to co-operate with them to resolve the matter, or if not, then submit a formal written grievance or complaint in line with your employer's relevant policies (if they do not have any grievance/complaint policy, then the ACAS Code on disciplinaries and policies apply, which can be found here: www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures).

I hope this assists.

Thanks @MaternityActionfreeadvice - that's super helpful advice.