Babies, Pregnant women, maternity and paternity leave during Covid-19

Babies,Pregnant women and paternity leave

Covid-19 – rights and benefits during pregnancy and maternity leave

Women in the law uk is experiencing exceptional demand for our advice at present so we have put together some frequently asked questions on rights at work and benefits during pregnancy and maternity leave during the Covid-19 pandemic. This is a fast-changing situation and we will add and update information in the coming weeks.

The health stuff.

Your health and the health of your baby are paramount.

Pregnant women are in high risk category according to government guidelines.

There have been two key pieces of guidance on pregnancy and coronavirus:

1. Public Health England have issued the

following guidance on social distancing for pregnant

women and other vulnerable groups. This guidance takes a cautious approach as Covid-19 is a new

disease and not much is known about it:

https://www.gov.uk/government/publications/covid-19-

guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-

everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults

2. The Royal College of Obstetricians and Gynaecologists, Royal College of Midwives and others

have issued the following guidance on pregnancy and coronavirus. This guidance seeks to reassure

pregnant women about the risks but also stresses that there is a lot we do not know about Covid-19

at present:

https://www.rcog.org.uk/en/guidelines-research-services/guidelines/coronavirus-

pregnancy/covid-19-virus-infection-and-pregnancy/

Both guides are likely to be updated at short notice as the situation changes.

Health and safety assessment for work place due to the coronovirus. Eg can I work from home because I am pregnant?

Health and safety adjustments at work during the Covid-19 pandemic

What health and safety protection do I have at work?

All employers have a duty to assess workplace risks and this must specifically include risks to pregnant women and new mothers. If there are workplace risks, e.g. heavy lifting or a lot of travelling, your employer must take reasonable action to remove the risks by altering your working conditions or hours of work, providing suitable alternative work or suspending you on full pay.

As Covid-19 is an infectious disease your employer’s duty to take health and safety action only applies if there is a ‘level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace.’ For example, if you are a health worker or you work in a pharmacy or supermarket you may be exposed to an increased risk of infection. You should ask your employer to assess the risks and take action as necessary such as providing suitable alternative work on the same terms and conditions or suspending you on full pay. Our information sheet on health and safety during pregnancy is here: https://maternityaction.org.uk/advice/health-and-safety-during-pregnancy-and-on-return-to-work/

Can I ask my employer if I can work from home?

As Public Health England guidance strongly advises all pregnant women and other vulnerable groups to work from home, your employer must allow you to work from home wherever practical. You should show your employer the following guidance and discuss what action needs to be taken to enable you to continue to do your existing job from home or whether there is other work you can do from home: https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults

What can I do if I cannot do my job from home?

Firstly, if you cannot do your job from home and your job has a higher risk of exposure to infection than outside the workplace, see question above, your employer must make reasonable adjustments such as altering working conditions or hours of work, providing you with suitable alternative work on the same terms and conditions or (if suitable alternative work is not available) suspending you on full pay.

If it is not practical for you to do your job from home and your job does not expose you to an increased risk of infection than outside the workplace, you will need to consider the following options:

• New Statutory Sick Pay regulations say that you can be treated as being incapable of work (even if you are well enough to work) if you are isolating yourself in order to avoid coronavirus infection following guidance published by Public Health England, NHS Scotland or Public Health Wales and you are unable to work. This also applies if you are isolating yourself because of advice by your GP, midwife or NHS 111. You can get Statutory Sick Pay (SSP) from day one of your incapacity for work or any contractual sick pay that your employer provides.
• Ask your employer if you can take annual leave
• Ask for unpaid leave (but see below)

If you are on SSP or unpaid leave during the qualifying period for Statutory Maternity Pay, approx. weeks 18 – 26 of your pregnancy, you may lose some or all of your SMP so try to take annual leave during this period if possible. For more information on how to qualify for SMP, see: https://maternityaction.org.uk/advice/maternity-pay-questions/

If your employer sends all workers home because they are unable to work because of the pandemic, the employer can apply to HMRC for a grant to pay workers up to 80% of pay up to ￡2500 per month in order to avoid redundancies. You are entitled to be paid the same as your colleagues in this situation as it may be pregnancy discrimination to pay Statutory Sick Pay if you are unable to work when your colleagues are being paid 80% of pay, see next question.

My employer has started to pay me Statutory Sick Pay as I am unable to work from home but has now closed and sent all employees home with 80% of their normal pay. Am I entitled to the same pay?

Yes, you are entitled to be paid the same as your colleagues if no-one is able to work. If your workplace closes during the Covid-19 pandemic and your employer sends all workers home, the Government has provided a grant for employers to be able to continue to pay all workers 80% of their wages up to ￡2500 per month in order to help employers to retain workers who are unable to work during the pandemic. More information on help for employers to avoid redundancies is available here and more information is likely to be available from the Government in the coming weeks: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses

It would be pregnancy discrimination if your employer pays you Statutory Sick Pay because you are unable to work but pays other workers who are unable to work 80% of normal wages.

Can I be dismissed for refusing to come into work during the pandemic?

It is important to keep in touch with your employer so that they are aware of the reason for your absence and so that you are not regarded as absent without leave. You should show your employer the guidance above and discuss the options for sick leave, annual leave and or unpaid leave during this difficult period.

In view of the recent Government advice that all pregnant women should work from home wherever possible and should stay away from the workplace, public transport and other public places wherever possible, a refusal to let you work from home, dismissal or other unfavourable treatment may be pregnancy discrimination and/or indirect sex discrimination. You would need evidence that the reason for the dismissal or unfair treatment was because of your pregnancy or that your employer’s policy of insisting that all employees stay in the workplace disadvantages more women than men because of the higher risks to pregnant women. However, you should bear in mind that these are difficult claims to bring, especially in the current circumstances.

If you want to make a claim there is a strict time limit and you should contact ACAS on 0300 123 11 00 within three months (less one day) from the date of dismissal or act of discrimination. ACAS will help you try to resolve it initially through ‘early conciliation’ with your employer.

Claiming for benefits

Benefits to help pay rent and other bills

Can I claim any other help with paying my rent during this period?

You may be able to qualify for Universal Credit which includes help with paying your rent. Entitlement to Universal Credit depends on your household income, number of dependants and housing costs. You can find a Universal Credit calculator here: https://www.gov.uk/universal-credit/what-youll-get

You can apply for Universal Credit online here: https://www.gov.uk/universal-credit/how-to-claim

Universal Credit is a monthly payment. The amount of Universal Credit you get can vary each month depending on yours and your partner’s income (if you are in a couple). If you are not currently working, your Universal Credit entitlement will be based solely on your partner’s income. If you are a single parent and you have no income, you will be eligible for Universal Credit.

Can I claim Universal Credit while I am getting Statutory Sick Pay, Statutory Maternity Pay or Maternity Allowance?

Yes, if you are getting Statutory Maternity Pay or Statutory Sick Pay it will be partially disregarded when you claim Universal Credit. However, if you are claiming Maternity Allowance it will reduce your Universal Credit award pound for pound as Maternity Allowance is counted as income. You can still apply for Universal Credit if you are getting Maternity Allowance as you may be entitled to help with paying your rent for example.

There will be a legal challenge to the treatment of Maternity Allowance as income under the Universal Credit regulations which is due to be heard at the end of June 2020. If you want to challenge the deduction of Maternity Allowance from your Universal Credit award, you can ask for a mandatory reconsideration and use the template letter on the Child Poverty Action Group website here: https://cpag.org.uk/welfare-rights/resources/test-case/maternity-allowance-and-universal-credit

Is there any other help I can get if I’m eligible for Universal Credit?

If you are eligible for Universal Credit you may also be able to claim the Sure Start Maternity Grant for your first baby or first multiple birth and you may be eligible for Healthy Start vouchers. For more on the Sure Start Maternity Grant or Best Start Grant in Scotland and Healthy Start vouchers, see:

https://www.gov.uk/sure-start-maternity-grant/how-to-claim

https://www.mygov.scot/best-start-grant-best-start-foods/

https://www.healthystart.nhs.uk/

You can also apply for discretionary housing payments from your local authority if you get help with your rent through Universal Credit or Housing Benefit. You should ask your local authority how to apply.

I’m not able to get Universal Credit, can I get any other help?

You may be able to get a council tax reduction – you should contact your local authority. In England and Wales you can also apply to your local authority for a discretionary reduction in your council tax bill. Local authorities can reduce your council tax in cases of financial hardship, loss of work or if you’re unable to work in the late stages of pregnancy or after childbirth.

Your local authority may also have a local welfare assistance scheme if you are having exceptional difficulties.

What should I do if I can’t manage to pay bills?

You can get free advice about managing your money and debts during this difficult time from regulated debt advisers such as:

Maternity pay and benefits for self-employed women

Some basic Q and A

I am self-employed and would like to stop work early in order to self-isolate. Can I still get Maternity Allowance?

The earliest you can start your Maternity Allowance is 11 weeks before your baby is due. You can stop work before then providing you meet the eligibility criteria – you can qualify for Maternity Allowance once you have completed 26 weeks of employment and/or self-employment in the 66 weeks before your baby is due. If you have been self-employed for at least 26 weeks in your 66 week test period you do not have to continue working right up to the start of your Maternity Allowance period. You can submit your Maternity Allowance claim form once you are 26 weeks pregnant.

You can find more information on Maternity Allowance for self-employed women here: https://maternityaction.org.uk/advice/maternity-and-parental-rights-for-self-employed-parents/

What happens if I have not yet paid by National Insurance contributions for the last tax year. Can I pay them in advance?

Yes, in order to qualify for full rate Maternity Allowance of ￡151.20 (April 2020 – April 2021) you can arrange to pay Class 2 national insurance contributions (NICs) when you make your Maternity Allowance claim. You must pay Class 2 NICs for at least 13 weeks in your 66 week test period in order to qualify for full rate MA. You should contact HMRC to arrange to voluntarily pay your NICs in advance. They must allow you do so if you are claiming Maternity Allowance. It’s a good idea to do it as soon as possible in order to avoid delays in processing your MA claim.

When is the earliest I can be paid Maternity Allowance?

The earliest you can start your MA is 11 weeks before your baby is due. To work this out find the Sunday immediately before your due date (or the date you are due if that’s a Sunday) and count back 11 weeks. That is the earliest date your MA can start.

I am self-employed and have already applied for Maternity Allowance. I now have to finish working earlier than planned in order to self-isolate. Can I have my MA payments brought forward earlier than I originally requested? 

Yes, you can telephone the MA Claims department on 0800 169 0283 and ask to move the start of your Maternity Allowance forward.

I am not entitled to Statutory Sick Pay as I am self-employed, is there anything I can claim if I am not able to work because of the Covid-19 pandemic?

The Government announced on 20th March that the self-employed will be able to access Universal Credit at a rate equivalent to Statutory Sick Pay. Universal Credit is a means-tested benefit and depends on household income.

See the section on benefits above for other help that you may be able to get if you are eligible for Universal Credit.

If you are not eligible for Universal Credit because of your household income but you are not well enough to work or you have been advised to stay at home you may be able to claim Contribution-based Employment and Support Allowance. This is now called New style ESA: https://www.gov.uk/employment-support-allowance. You are eligible if you are not able to work and you have paid enough Class 2 National Insurance contributions (if you’re self-employed) in the last 2 to 3 years.

You can find more information on claiming these benefits if you’re self-employed here: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-guidance-for-employees

The law

Statutory Maternity Pay and Maternity Allowance

 Do I still get my maternity pay if my work shuts down? 

Firstly, you need to check whether you meet the qualifying conditions for Statutory Maternity Pay (SMP). If you have been employed up to the 15th week before your baby is due and meet the other qualifying conditions, you are still entitled to be paid your full SMP. Click here for our information sheet on maternity pay.

To work out the 15th week before your baby is due, find the Sunday before your baby is due (or your due date if it’s a Sunday) and count back 15 weeks. That is the start of the 15th week before your baby is due. There is an online calculator here.

If you meet the qualifying conditions for SMP, your employer must pay it by law. All employers are reimbursed by HMRC.

If your employer is unable to pay your SMP, they can request advance funding from HMRC.

Your employer can get advice on paying and reclaiming SMP from the HMRC Employers Helpline on 0300 200 3200.

If your employer has gone into liquidation, you can claim your SMP directly from HMRC. You should telephone the HMRC Employees Helpline on 0300 200 3500 or the HMRC Statutory Payments Disputes team on 0300 0560 630.

If you do not meet the qualifying conditions for SMP, you can claim Maternity Allowance instead. You can find the Maternity Allowance claim form here. There is more on Maternity Allowance below.

What do I do if my employer does not respond to phone calls and emails about my maternity pay?

As this is a difficult and fast-moving situation, it’s important to give your employer as much information as possible, including the information above on where your employer can get advice. Make sure your employer knows that they will be reimbursed for your SMP.

If your employer is not replying to your calls/emails, let them know that you will now need to contact HMRC to get your SMP. This may prompt your employer to take action as it is likely that HMRC will contact your employer to ask for relevant information.

If your employer is not responding, you can contact the HMRC Employees Helpline on 0300 200 3500 or the HMRC Statutory Payments Disputes team on 0300 0560 630 if your employer is refusing to pay your SMP or has gone out of business and can no longer pay it. HMRC will investigate and will order your employer to pay your SMP. If your employer has gone out of business, HRMC will pay your SMP directly.

Will I still be paid SMP or Maternity Allowance if I qualify for it but I have to leave the country?

Yes, your employer must continue to pay your SMP as normal if you leave the country. Once you have met the qualifying conditions for SMP you are entitled to receive it for the full 39 weeks.

You can continue to receive your Maternity Allowance for the full 39 week period if you go abroad temporarily. You should notify the DWP before you go away.

I’m not able to work from home, but I will only be paid Statutory Sick Pay if I’m self-isolating at home. I’m 20 weeks pregnant, will this affect my maternity pay?

In order to qualify for Statutory Maternity Pay (SMP) you need to have average weekly earnings of at least ￡118 pw (￡120 pw from 5th April 2020) in the 8 weeks before the 15th week before your baby is due. If you are paid monthly, you need to look at your average weekly earnings in the 2 months before the 15th week before your baby is due. This period is when you are approximately 18 to 26 weeks pregnant. You can find more information on maternity pay here.

If you are on Statutory Sick Pay (SSP) of ￡94.25 pw during the whole of your 8 week/2 month period, you will not be able to qualify for SMP and you will need to claim Maternity Allowance instead. If you are on SSP during part of the 8 week/2 month period, your average earnings will be lower which may reduce the amount of SMP you get.

In order to continue to get normal earnings during this period you could ask your employer if you can take any outstanding annual leave. You continue to accrue annual leave as if you are at work during your maternity leave so your employer may also be willing to let you use some annual leave in advance. Some employers are keen for you to do this as it means that you won’t have lots of annual leave left to take at the end of your maternity leave.

I do casual worker and I am unable to continue working now because of self-isolation. What am I entitled to claim?

All workers and employees are entitled to Statutory Maternity Pay if you meet the normal qualifying conditions. If your employer pays you through PAYE and deducts tax and National Insurance (or would do if your earnings are high enough), you may be eligible for SMP. This means that most agency workers, zero hours workers and casual workers, as well as employees can claim SMP. If you don’t meet the qualifying conditions for SMP you can claim Maternity Allowance, see below.

You can use the online calculator here to see if you qualify for SMP.

You must give your employer, or agency, notice of when you want to start your maternity leave and pay by the 15th week before your baby is due. You will also need to give them your MATB1 maternity certificate which you can get once you’re 20 weeks pregnant. In view of the pressure on NHS services you may need to telephone your midwife or GP and ask if they can send your MATB1.

Workers and agency workers are treated as employees for Statutory Sick Pay purposes so you may be eligible if you are off sick or you are treated as incapable of working because you have been advised to isolate. For more on sick pay, click here.

You may also be eligible for other means-tested benefits if you have no other income during this period. See the section on benefits.

 Maternity Allowance

I won’t be able to get Statutory Maternity Pay (SMP) because I will be on Statutory Sick Pay for the rest of my pregnancy – what can I claim?

If you are on Statutory Sick Pay when you are approximately 18 – 26 weeks pregnant and your earnings are too low in this period for you to claim SMP, you can claim Maternity Allowance instead.

To qualify for Maternity Allowance you need to show that you have been employed or self-employed for at least 26 weeks out of the 66 weeks before your baby is due. If you are employed, you will also be asked to send in payslips covering a 13 week period. It doesn’t need to be 13 works in a row. It can be any 13 weeks in your 66 week test period. You should send in payslips with your highest earnings, not weeks in which you were paid Statutory Sick Pay.

You can claim Maternity Allowance here. You can send the claim form in once you are 26 weeks pregnant.

Can I stay on sick pay until my Maternity Allowance starts?

Yes, it is up to you to decide when you want to start your maternity leave and pay and you can remain on sick pay up to the start of your maternity leave. The earliest you can start maternity leave and pay is 11 weeks before your baby is due.

If you are on sick pay because you are self-isolating because of Covid-19, your employer can trigger your maternity leave and pay from four weeks before your expected week of childbirth. But you are entitled to remain on sick pay until that point.

My maternity leave has just ended and I’m on annual leave that was arranged some time ago. My work are short-staffed as a result of coronavirus. Can they force me to cancel my annual leave and return to work early?

Employers can ask staff on annual leave or any other type of leave if they are able to return to work early if they are short-staffed but they cannot force staff to cancel annual leave or maternity leave. These are statutory (legal) rights that are provided on health and safety grounds. Maternity leave is provided to ensure that mothers can stay off work in order to look after a young baby and annual leave is a health and safety measure to ensure that all workers have some paid time off work.

If you are not able to return to work earlier than planned you should explain your circumstances to your employer, for example, if you have no childcare in place before your planned return. You should check your contract to see if there are any circumstances in which your employer can cancel annual leave.

If you’re in a position to help your employer out during this difficult period you can make arrangements to take annual leave at another time. If you’re still in your maternity leave period (paid or unpaid maternity leave) you and your employer can agree some keeping-in-touch days to enable you to do some work while remaining on maternity leave. You are entitled to be paid for keeping in touch (KIT) days during your maternity leave but there are no regulations on how much you should be paid for working KIT days so it’s important to agree this with your employer. For more information on working during maternity leave, see: https://maternityaction.org.uk/advice/keeping-in-touch-days/

My maternity leave ends at the end of March. My employer thinks that they will be sending all employees home by then and they are intending to pay them as normal for a 12 week isolation period. I have been told I cannot return, is that right?

No, once your maternity leave ends you are officially back at work and your employer must treat you in the same way as other employees. You are entitled to return to the same job on the same terms and conditions. If it is not reasonably practicable for you to return to the same job your employer can offer you a suitable alternative job. If your employer is temporarily asking employees to work from home, this will apply to you as well once your maternity leave has ended.

All employers can claim a grant from HMRC to continue to pay wages of all employees and workers of up to 80% of your salary up to a maximum of ￡2500 per month. This applies from 1st March for all employees on the payroll at that date and includes those on maternity leave even if you are not currently receiving any maternity pay. As soon as your maternity leave ends you must be treated as being back at work and you would be entitled to be paid in the same way as your colleagues.

If your employer refuses to let you return to work at the end of your maternity leave it may be an unfair dismissal (if you have two years’ service), automatic unfair dismissal because of your maternity leave and/or maternity discrimination (which are day one rights). You should ask your employer to confirm in writing why you have been dismissed and you must contact ACAS within three months (less one day) on 0300 123 11 00 from the date of dismissal or discrimination if you want to start a tribunal claim.

For more information on your rights during maternity leave and return to work, see: https://maternityaction.org.uk/advice/discrimination-during-maternity-leave-and-on-return-to-work/

For more information on how to resolve problems at work, see: https://maternityaction.org.uk/advice/dealing-with-problems-at-work/

We how these law and practical guidance series are useful

Sally Penni