Changes to Government guidance for pregnant women-December 2021

The Government has updated its guidance for pregnant women during the COVID-19 pandemic. The new guidance removes the distinction between pre- and post-28 weeks’ gestation and removes the general advice around working from home in the third trimester, except where the women is not fully vaccinated.

The revised guidance does not remove the legal requirement for the employer to carry out and regularly review an individual risk assessment, which takes account of all workplace risks and hazards, not just those relating to COVID-19.   

There is currently much uncertainty around the potential impact of the Omicron variant, and employers will need to factor this into risk assessments to ensure they are doing everything reasonably practicable to ensure the health safety and welfare of pregnant women. This may include working from home where risks cannot be adequately controlled.

If members are concerned about the arrangements or risk assessment in their workplace, these should be raised with management or your NASUWT representative in the first instance, and if issues persist contact the NASUWT for further advice 


Your duties as a pregnant or new mother
The Health and Safety at Work Act 1974 (HASAW)
‘Clinically vulnerable’/‘clinically extremely vulnerable’
The role of the ‘competent person’
Medical advice/occupational health
Vaccinations
Contingency planning for a Covid-19 outbreak
The Equality Act 2010
Further advice and guidance

The NASUWT is aware that there are a significant number of members who are pregnant or on maternity leave who will be concerned about the workplace from September 2021, given the easing and withdrawal of various restrictions in relation to the Covid-19 pandemic.

In light of this, the Union has revised its advice and guidance to ensure that members who are pregnant or on maternity leave are aware of their rights and entitlements and supported during this time.

Your duties as a pregnant or new mother

Throughout the process, it is important that you inform your employer of the fact that you are pregnant or breastfeeding and that you expect the school to support you in your request for an individual risk assessment.

You must co-operate with the employer, providing them with any information which will facilitate the provision of an individual risk assessment for you as a pregnant or new mother, which should be provided to you before you return to work.

The Health and Safety at Work Act 1974 (HASAW)

The Health and Safety at Work Act places a responsibility on all employers to ensure, as far as is reasonably practicable, the health and safety of all employees and non-employees in their workplace. This includes identifying and assessing risks to health and safety, and steps to reduce or eliminate these risks, so that all those working in a school are safe, including pregnant teachers and those who are breastfeeding. This applies to Covid-19 in the same way as it would to any other hazard.

The employer is required to consider whether they have taken ‘reasonable steps’, so far as reasonably practicable, if necessary by amending their health and safety policies, procedures and practices, to ensure that pregnant teachers or new mothers are not placed at a substantial disadvantage.

Indeed, advice and guidance from the UK Government emphasises the importance of conducting a risk assessment for those who are pregnant.

Under the Management of Health and Safety at Work Regulations (1999), employers are required by law to produce an individual risk assessment for you if you are pregnant or a new mother, including clear plans which demonstrate that there will be compliance at all times with the measures identified to manage the overall risk of Covid-19, as well as those specific to you as a pregnant or a new mother.

This may require employers taking advice from other professionals on specific risks (e.g. medical professionals/occupational health) for pregnant teachers and those who are new mothers to best ensure your health and safety in the workplace.

The Workplace (Health, Safety and Welfare) Regulations 1992 provide additional protections for pregnant teachers and those who are new mothers as it requires employers to provide suitable rest facilities for teachers who are pregnant or breastfeeding. These should be located in a suitable place (e.g. near toilets) and, if necessary, include appropriate facilities for teachers who are pregnant or new mothers to lie down.

‘Clinically vulnerable’/‘clinically extremely vulnerable’

It is important that any risk assessment acknowledges and accounts for the fact that those who are pregnant are still considered to be in the list of people who are ‘clinically vulnerable’ as a precaution. In some cases, those who are pregnant may still be classed as ‘clinically extremely vulnerable’ (CEV).

This is because pregnancy can alter how the body handles severe viral infections and because some viral infections, such as flu, are worse in pregnant women.

Indeed, there is some evidence that pregnant women are at higher risk of hospitalisation and suffer more severe symptoms if they contract Covid-19, a situation that can be compounded if the individual is from a black background, if they are over the age of 35, have a BMI index in excess of 30, and/or have pre-existing medical conditions, such as high blood pressure and diabetes.

In respect to women who are pregnant and in their third trimester (more than 28 weeks’ pregnant), advice and guidance produced by the UK Government expects all employers to take a ‘more precautionary approach’, particularly as there is evidence which suggests a link between the symptoms of Covid-19 and complications in and around the time of birth, including premature birth, pre-eclampsia, the need for an emergency caesarean, and stillbirth.

Given this, the Union has produced separate specific advice and guidance for teachers who are pregnant and in the third trimester, which can be found at Pregnant Teachers in Third Trimester During Covid-19 Pandemic.

Furthermore, the advice and guidance published by the UK Government advises that pregnant women at any period of gestation should not be required to continue working unless this is supported by an appropriate risk assessment. The same advice and guidance references the need to monitor and follow the information published by the Royal College of Obstetrics and Gynaecology (RCOG), including using this as the basis for a risk assessment.

Whilst advice from the Department for Education (DfE) advises that pregnant teachers who are clinically vulnerable can follow the same guidance as everyone else, there is an expectation that schools follow the advice and guidance for pregnant employees referenced above as part of any risk assessment, including giving due consideration to whether adapting duties and/or facilitating home working is an appropriate mitigating factor.

The risk assessment must be produced and any options fully discussed with you in advance of any return to work, which should be kept under review throughout your pregnancy/period of breastfeeding and as government advice and guidance changes.

Furthermore, it should be noted that this is predicated on the ability to minimise contact. If this is not possible, then the time spent in close contact with others should be kept to a minimum.

Those who are pregnant should therefore still take care to minimise contact with others from outside their household and should only return to the workplace if it has been demonstrated that it is safe to do so.

This may include, but is not limited to:

  • adjusting your working conditions or hours of work, including:
    • providing arrangements for you to report to the school safely;

    • letting you sit down if your job involves standing;

    • avoiding any heavy lifting;

    • adjusting your workload (e.g. not attending after-school meetings);

    • flexible working so you can stagger your working day if you suffer from morning sickness;

    • providing you with a convenient suitable place to rest and lie down if you are pregnant or breastfeeding that minimises close contact with others and is located near a suitable place (e.g. toilets), as per the Workplace Regulations;

    • providing you with reasonable agreed breaks that may be in addition to those already in the school timetable, including where these can be taken in a Covid-secure environment;

    • providing you with a safe working environment that accommodates and adjusts both the physical and mental demands of your role accordingly at different stages of your pregnancy;

    • providing a private, healthy and safe environment for breastfeeding teachers to express and store milk;

    • allocating you to your own office;

    • allocating you the safest alternative role with the greatest likelihood of minimising close contact with others;

    • ensuring those who may have close contact are advised to clean their hands thoroughly and more often than usual;

    • ensuring good respiratory hygiene for everyone coming into contact with you (e.g. ‘catch it, bin it, kill it’);

    • maintaining enhanced cleaning regimes in and around your work area and any classrooms used;

    • providing you with details of the arrangements for how pupils are expected to be managed to ensure compliance with any additional mitigations for you as a pregnant teacher or new mother (e.g. classroom layouts), including measures to deal with any medical conditions, behavioural issues and/or violent pupils, special educational needs or disabilities (SEND) in respect of Covid-19;

    • providing you with details of the revised fire exit and any revised evacuation plans, including routes and procedures for you as a pregnant or new mother (these should identify any additional mitigations required in the context of Covid-19);

    • providing you with the details of how you will deployed to protect you in regards to any Covid-19 testing regime;

    • providing you with the details of what contingency planning is in place for you as a pregnant or new mother in the event of a suspected outbreak of Covid-19;

  • addressing the risk assessment on a regular basis, particularly in light of any medical evidence from your GP and/or midwife;

  • addressing issues relating to stress, including postnatal depression, as well as those relating to mental health wellbeing, particularly if utilising remote learning/working from home;

  • addressing issues relating to personal protective equipment (PPE), including the wearing of face coverings as appropriate and ‘recommended’ circumstances, including for both staff and pupils in classrooms and communal areas;

  • addressing issues to do with ventilation and extremes of temperature, including identifying and agreeing processes for keeping your working environment well ventilated, including through the use of carbon dioxide sensors as suggested by the Health and Safety Executive (HSE); and

  • addressing issues relating to the use of public transport.

The Union has produced a specific Pregnancy Health and Safety Risk Assessment to assist and support those who are pregnant or new mothers. This can be accessed on the right/below.

Your individual risk assessment should be provided to you by the employer in enough time to fully familiarise yourself with the situation at the earliest opportunity.

This should demonstrate what considerations have been given to the issues raised above and how the working environment has been adjusted accordingly.

School leaders will therefore need to be cognisant of this and share and discuss this with pregnant teachers as part of an ongoing risk assessment, including being flexible with how those members of staff are deployed if the school is not able to demonstrate that the risks are removed or mitigated satisfactorily, including:

  • altering your working conditions or hours of work;

  • providing suitable alternative work on the same terms and conditions, including working from home; and

  • suspending you on full pay (if there is no suitable alternative work).

The role of the ‘competent person’

Pregnant and breastfeeding mothers should expect any discussions about their risk assessment to be undertaken by, or in conjunction with, a competent person in order to meet the requirements of health and safety law.

A competent person should be someone in your school or college who has sufficient training and experience or knowledge to assist you in the process properly.

The level of competence required will depend on the complexity of the situation, but there is an expectation that the ‘competent person’ is able to offer the specific advice and guidance required.

This can include the employer or someone within the school or college. If this is the case, you should enquire as to their experience and expertise so you can be satisfied that any and all concerns you have regarding your situation as a pregnant and breastfeeding mother can be addressed accordingly.

It should be noted that it is not essential for your employer to meet with you in person to discuss your risk assessment. Due to the ongoing Covid-19 pandemic, it is perfectly reasonable for your risk assessment to be conducted remotely, particularly if it would put you at risk to travel to the workplace to discuss your risk assessment.

However, even with a comprehensive risk assessment in place, you may still have concerns around returning to school. This is a natural reaction to the circumstances and it is likely that there will be a sense of trepidation ahead of the wider reopening. It is important, therefore, that these concerns or anxieties are shared with line managers/headteachers. If issues are not raised, they cannot be addressed and good employers will welcome this feedback in order to review and adapt arrangements.

If you are feeling anxious about returning, you should also enquire about any employee assistance programmes (EAPs) that your employer may offer.

If there are concerns around your school’s response and/or the risk assessment, in the first instance, these should be raised with your line manager/headteacher at the earliest opportunity. If you do not receive a satisfactory response, or continue to have any outstanding or ongoing concerns, you should contact the NASUWT for further advice.

Medical advice/occupational health

If you still feel unable to return to work, you should seek advice from your midwife and/or GP. Your health and wellbeing must be your top priority and your midwife and/or GP may be able to supply you with a fit note stating that you are fit to work, providing the adjustments required are put in place.

As referenced above, a referral to occupational health can also be beneficial and supportive to addressing concerns in the workplace and facilitating a return. Absence also gives time for the employer to resolve any outstanding concerns around the workplace which can then facilitate a return.

Your school or college should respond sympathetically and there should be dialogue in order to try to address any underlying issues.

Vaccinations

Whilst the decision over whether or not to get vaccinated rests with the individual, the Royal College of Obstetricians and Gynaecologists (RCOG) recommends vaccination as the most effective way of protecting pregnant women from Covid-19.

It should be noted that schools and colleges are still obliged to undertake a risk assessment for pregnant and breastfeeding mothers whether or not they have been vaccinated.

Contingency planning for a Covid-19 outbreak

Schools in England should have an outbreak management plan in place, which details the steps to be taken if there is an outbreak in the school. Part of this plan should include considerations around pregnant women, including a review of the risk assessment and additional mitigations where appropriate, and members should check that this is in place. Further guidance on outbreak plans can be found in our Outbreak Management Planning advice.

If you have concerns around your school’s response and/or the risk assessment, these should be raised with your line manager/headteacher at the earliest opportunity. If you do not receive a satisfactory response, contact the NASUWT for further advice.

The Equality Act 2010

The provisions under the Equality Act 2010 and corresponding Public Sector Equality Duty (PSED) apply to all employees. The duties under this legislation apply to England, Scotland and Wales.

Under the PSED, school management and governing bodies are required to have ‘due regard’, when making decisions and developing policies, to the need to:

  • eliminate discrimination, harassment, victimisation and other conduct that is prohibited under the Equality Act 2010;

  • advance equality of opportunity between people who share a protected characteristic and people who do not share it; and

  • foster good relations across all protected characteristics - between people who share a protected characteristic and people who do not share it.

As a pregnant teacher or new mother, you are protected from discrimination, victimisation and harassment under these provisions. All school risk assessments should be equality impact assessed to ensure that there are no discriminatory provisions or practices for pregnant teachers or new mothers.

Further advice and guidance

Statutory Maternity Pay (SMP)

The normal rules apply during the Covid-19 pandemic for eligible teachers. You are entitled to receive up to 39 weeks’ Statutory Maternity Pay (SMP), followed immediately by 13 weeks’ unpaid maternity leave.

If you are on Statutory Sick Pay (SSP) or were placed on furlough, this still counts as continuous service for the purposes of qualifying for SMP. However, SSP is below the earnings threshold for SMP, so this may affect your average earnings.

If you were on furlough and started your maternity leave after 25 April 2020, your employer must use your normal earnings when calculating your SMP.

If you are still working and have agreed a pay cut, this could affect the calculation of your SMP if your wages are reduced in the period used to calculate your SMP.

However, if your employer reverses the pay cut during any period up to the end of your maternity leave, this should be treated as a pay rise and your employer must recalculate your average earnings to take account of the pay rise and pay you any extra for the first six weeks of your SMP.

Maternity leave

Existing regulations for maternity leave continue to apply during the Covid-19 pandemic.

Your employer cannot insist that you take your maternity leave earlier because of the situation involving the Covid-19 pandemic. If the risk assessment indicates that you are better placed working from home, this should not trigger or impact on your maternity leave and when you wish to take it, although a pregnancy-related reason in the last four weeks of your pregnancy could include a medical suspension related to Covid-19 following a risk assessment.

Similarly, your employer cannot ask you to cut short your maternity leave unless you are happy to do so. Maternity leave is provided to ensure that mothers can stay off work in order to look after a young baby.

Legal rights during your pregnancy and maternity leave

Your employer cannot treat you less favourably because you are pregnant or because you have taken maternity leave. For example, your employer cannot change your terms and conditions of employment whilst you are pregnant or whilst you are on maternity leave without your agreement. You also cannot be dismissed from employment or subject to unfair treatment because of your pregnancy or maternity.

In addition, you cannot be denied pay progression because of pregnancy or maternity leave, including if you are remote learning/working from home as a consequence of a risk assessment undertaken by the employer.

Your employer should also keep you informed of any changes, including job opportunities or planned redundancies.

The Coronavirus Restrictions Regulations 2020 state that Covid-19 is a serious and imminent danger to public health. As such, if you have to leave your work or take other action because of a serious or imminent risk to your health and safety, you are protected against dismissal or detrimental treatment such as loss of pay or disciplinary action.

‘Keeping in Touch’ days

During your maternity leave, you can have the option to work up to ten ‘Keeping in Touch’ (KIT) days. These are optional and need to be agreed by you and your employer.

Despite the pandemic and the situation with schools, the Union believes that many teachers benefit from these days and now, more than ever, those on maternity leave would benefit from discussing the proposals regarding their working arrangements and the plans the employer has following the easing of Covid-19 restrictions for the academic year 2021/22.

Any KIT days should be discussed with your employer prior to them being agreed, including the logistics of how this would take place and any associated risk assessments in place if this cannot be done remotely, as well as the type of work you will be undertaking.

If KIT days are undertaken, remotely or otherwise, you should expect to be paid a day’s salary.

KIT days may be a reasonable way to engage with your school and discuss any concerns and anxieties you may have about returning to work, given the current situation with the Covid-19 pandemic.

KIT days may also provide an opportunity for you to discuss an individual risk assessment with your employer and what reassurances they can give that the workplace is safe for you to return to as a new mother.

Returning to work following maternity leave

If you wish to return to work on the agreed date, then no notice is required. If you wish to return to work earlier than your agreed date, or if you wish to extend the period of your maternity leave, you will need to give your employer at least eight weeks’ notice in writing of the new date of return.

You should return to the same job if you took Ordinary Maternity Leave (OML). If you have taken Additional Maternity Leave (AML), you have the right to return to a job that is not significantly different, but it may not be the same.

If you become pregnant again during your maternity leave, you are entitled to a second period of maternity leave without the need for you to return to work between the pregnancies.

You are entitled to a further period of up to 52 weeks’ maternity leave for your new pregnancy. It does not matter how many periods of maternity leave you have taken or whether they overlap or not.

However, it should be noted that your maternity pay may be affected if you are not receiving normal earnings in the calculation period for maternity pay for your next baby.

Furthermore, the overwhelming majority of teachers are employed under the provisions of the Burgundy Book, which contains provisions for an occupational maternity scheme for those teachers who are eligible, and the SMP component may be affected accordingly.

You may decide to make a request for flexible working and this should be treated in the same way as normal. Further information can be found on our Flexible Working web page.

Your employer has a specific duty to protect your health and safety for six months after the birth of your child and for as long as you are breastfeeding. This should therefore form an essential part of any risk assessment that is conducted and discussed with you before you return to work.

Additional financial help for pregnant or breastfeeding mothers during Covid-19

The Covid-19 pandemic has had a number of impacts on pregnant and breastfeeding mothers, including increased financial hardship.

The Union is aware that there are a number of benefits which pregnant and breastfeeding mothers may be able to access to assist them during the pandemic, including:

Universal Credit

This can be claimed in addition to Statutory Maternity Pay (SMP) or Statutory Sick Pay (SSP). It will be partially disregarded when you claim Universal Credit.

If you are claiming Maternity Allowance (MA), it will reduce your Universal Credit award pound for pound, as MA is counted as income. However, you should still apply for Universal Credit as you may be entitled to help with paying your rent, for example.

Sure Start Maternity Grant

If you are eligible for Universal Credit, you may also be able to claim the Sure Start Maternity Grant for your first baby and you may be eligible for Healthy Start vouchers. Further information and guidance can be found at:

You may also be able to 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.

If you are not eligible for Universal Credit, you may be able to get a reduction in your council tax. For those in England and Wales, you may be able to apply to your local authority for a discretionary reduction in your council tax bill. Local authorities have the ability to assist in cases of financial hardship, including those brought about by loss of work or if you are unable to work in the late stages of pregnancy or after childbirth.

The local authority may also have a local welfare assistance scheme for those experiencing exceptional difficulties.

This could include situations arising from the Covid-19 pandemic.

It is important to check your situation carefully before you claim for some benefits. For example, if you claim for Universal Credit, it could lead to other benefits coming to an end, such as Housing Benefit, and you cannot go back onto these benefits.

Child Benefit

Even if you are unable to register the birth of your child due to the situation in respect of Covid-19, you can still claim Child Benefit.

This should be done as soon as reasonably practicable as claims for Child Benefit can only be backdated for three months.

Further details can be found at: