Research of Tommy’s (a UK charity researching the causes and prevention of pregnancy complications, miscarriage, stillbirth, premature birth and neonatal death) found that sadly it is estimated that 1 in 4 pregnancies end in loss. The figures show that it is much more common than many people realise however despite this, a report of CIPD has found that only 36% of organisations actually have a policy on pregnancy loss/miscarriage (either a standalone policy or part of wider one).
Unfortunately, pregnancy loss and miscarriages are still typically a taboo subject and employees may fear that there will be implications on opportunities for progression if they reveal they are trying for a baby. It is not helped that there is not a great deal of legal protection for employees going through pregnancy/baby loss. Employers would therefore be encouraged to consider having a policy on pregnancy/baby loss in place that employees can rely on if they find themselves in need of support during this difficult time. Having a process in place will hopefully encourage employees to seek support from their employer and help to end the stigma around the sensitive topic.
We have set out some answers below on what the current position is along with some good practice advice for employers.
What is an employee entitled to if they or their partner has a still birth or neonatal death?
If a child is stillborn after 24 weeks of pregnancy or if a child is born alive at any stage of pregnancy but then dies (known as a 'neonatal death') then all legal consequences of childbirth will apply. This includes the following:
- The birth mother can get up to 52 weeks of statutory maternity leave or pay;
- The birth father can get up to 2 weeks of paternity leave or pay;
- The partner of the birth mother or adopter can get up to 2 weeks of paternity leave or pay.
Both parents may have the right to statutory parental bereavement leave and pay in addition to maternity and paternity leave.
What is an employee entitled to if they have a miscarriage?
There is no entitlement to statutory maternity, paternity or parental bereavement leave if a miscarriage happens in the first 24 weeks of pregnancy. Despite this, employers would be encouraged to still consider offering time off at what can be an extremely tough time for individuals both physically and mentally.
However, in the event that a miscarriage does happen in the first 24 weeks of pregnancy then any sickness absence the birth mother needs to take is likely to be considered as ‘pregnancy-related illness’ and so employers should tread carefully. Under the Equality Act 2010, ‘pregnancy and maternity’ is a protected characteristic and so if an employee is treated less favourably or disadvantaged because of their pregnancy-related illness then this could amount to grounds for claims for discrimination and any dismissal on the basis of it is likely to be automatically unfair (regardless of the employee’s length of service). Employers should therefore ensure that any pregnancy related absence is not considered in respect of any decisions on promotion, assessing benefits and ensure such absence is recorded separately from other sickness absence.
What good practice should employers follow for workplace support with pregnancy and baby loss?
- Raise awareness across the organisation to ensure pregnancy or baby loss is considered as an important well-being issue.
- Train managers to ensure they have the appropriate skills and knowledge to confidently engage in empathetic and understanding conversations with employees regarding pregnancy and baby loss.
- Consider implementing a specific policy regarding pregnancy loss/miscarriage or including it in any existing bereavement leave policy. As part of such policy, employers could consider including the following:
- Paid compassionate/bereavement leave for employees affected by pregnancy loss which could also cover partners.
- Paid leave to attend medical appointments relating to the pregnancy loss.
- Offering counselling and paid time off to attend such appointments or informing employees of forms of other support such as an Employee Assistance Programme.
- Offering a phased return to work or having the ability to work from home.
- Detailing named individuals within the organisation who can offer support (who are trained appropriately).
- Be flexible – Manage absence leave with compassion and understand that different employees may process the grief in different ways.