If you have a pregnant employee who has been on furlough and you want her to return to the workplace, what can you do if she refuses?

Work with your pregnant employee

    Involve employees in discussions about workplace safety;

    Ask employees to raise specific concerns and explain the steps that have been taken to address those concerns;

    If necessary, see if there are any duties the employee can do from home.

It is important to work with your employee rather than against her and to ensure that you fully understand her concerns while working with her to make her aware of the steps you are taking to make the workplace safe.

What if she still refuses?

And the biggest question of all – do I still need to pay her?

On one hand, there is the argument that an employer only pays the employee who is ready, willing and able to work. If she is not prepared to attend the workplace then she is not ready, willing and able to work and it follows that she would not be entitled to pay.

However, there is also the equal argument that she has a statutory right to say that she does not want to work because she believes there is a “serious and imminent danger to health” and on that basis, the law says (Employment Rights Act 1996) that she cannot suffer a detriment for exercising that statutory right. Not paying her would be a detriment.

Options

Dismiss – this is extremely high risk (this would most likely be an automatically unfair dismissal, it’s not subject to the two year qualifying period and the compensatory award isn’t subject to the normal cap of a year’s earnings or £88,519, whichever is higher). Not to mention the pregnancy which would undoubtedly be brought up as a discrimination claim as well. So I really would not recommend that you look to dismiss.

Let her stay at home and either find other work that she can do from home or pay furlough if eligible – by far the safest option although I recognise not an attractive one from an employer perspective.

Let her stay at home unpaid – there is a very real chance that this would be considered a breach of contract. That could mean that the employee would be entitled to claim for arrears of all the wages they missed out on, plus the automatically unfair dismissal bit (if they chose to resign), plus the discrimination claim on the basis of pregnancy.

For specific questions and advice based on your particular circumstances, contact us.