Supporting staff through baby loss — legal and practical guidance
Some of the key legal and practical employment-related issues arising from baby loss.
An estimated one in four pregnancies ends in a miscarriage or stillbirth and a smaller but significant number of pregnancies are ectopic. Baby loss affects women and their partners in different ways and appropriate support by management and colleagues can make a significant difference to how people cope. In addition, many employees who suffer baby loss are unaware of their rights and managers are not always clear about their responsibilities. In this article we look at some of the key legal and practical employment-related issues arising from baby loss.
The ethical and commercial significance of supporting employees who suffer a baby loss
Baby loss affects people in different ways, including having difficulty in sleeping, concentrating or feeling motivated, as well as struggling with social interaction. Understandably, this may impact on a person’s attendance and/or performance at work. It therefore makes ethical, commercial and operational sense for employers to ensure that they have the knowledge and processes in place to provide appropriate support for anyone who has suffered baby loss. In addition, there are some potentially significant legal consequences if management lack a proper understanding of their responsibilities.
Legal protection for employees who suffer a baby loss
Whilst most workplaces have staff who have been affected by baby loss, many employees don’t know their rights and many managers are not always clear about their responsibilities. These vary, depending upon whether the affected employee has suffered a miscarriage, a stillbirth or a neonatal death:
- A miscarriage occurs when a baby (or foetus or embryo) dies in the uterus during the first 23 weeks and 6 days of a pregnancy;
- Any loss from 24 weeks onwards is called a stillbirth; and
- If a woman’s baby is born alive at any stage of the pregnancy (including within the first 24 weeks) but subsequently dies within the first 28 days of life then (even if the baby only lived for a few minutes) this regarded as a live birth and a neonatal death.
Right to time off / pregnancy-related sick leave
A woman who suffers a miscarriage won’t qualify for maternity leave or pay since a miscarriage is not classed as "childbirth". Therefore:
- If a woman is fit for work but wishes to take time off following a miscarriage then she will need to ask her employer for compassionate leave or else she will need to take annual leave;
- If, however, a woman is not physically or mentally well enough to attend for work following a miscarriage then she is entitled to sick leave and her usual contractual sick pay (if any). Furthermore, if a woman needs to take sick leave because of a miscarriage then this should be treated as pregnancy-related sickness and she must not subject to any detriment because of it, e.g. for disciplinary or redundancy purposes.
Partners are not legally entitled to pregnancy-related leave or sickness absence, even though they might be equally affected by the baby loss. That said, many employers make provision for partners in a miscarriage policy or may offer paid or unpaid compassionate leave.
Protection against discrimination
The Equality Act provides protection against discrimination on the grounds of pregnancy or pregnancy-related sickness for a protected period of two weeks from the end of a pregnancy for women who are not entitled to maternity leave. During this two-week period a woman is protected against discrimination, dismissal, redundancy or unfair treatment related to their pregnancy, miscarriage or related sick leave.
After the two-week protected period a woman may have a claim for direct and/or indirect sex discrimination (rather than pregnancy discrimination) if she is dismissed, made redundant, disciplined or treated unfairly because of her pregnancy, miscarriage or related sick leave. This protection is not limited to a specific period and applies to treatment related to pregnancy or miscarriage-related sickness regardless of how long she is off sick.
If a woman is an employee then she may also have claims for unfair dismissal, detrimental treatment (which can include a range of unfair treatment) or automatic unfair dismissal on the grounds of pregnancy (including a miscarriage or related sickness absence). This protection is not limited to a specific period and applies to treatment related to pregnancy or pregnancy/miscarriage-related sickness, regardless of how long she is off sick.
Bereavement leave and pay
Since a miscarriage during the first 24 weeks of pregnancy is not classed as "childbirth", neither the mother nor her partner has any statutory right to parental bereavement leave or pay.
Maternity leave and pay
If a woman’s baby was delivered stillborn after the end of the 24th week of pregnancy then she is entitled to 52 weeks maternity leave and — subject to the usual qualifying preconditions — Statutory Maternity Pay or Maternity Allowance. In the event of a stillbirth, the employee's maternity leave will start the day after it occurs and she will be afforded the usual rights and protections during her maternity leave, including the various rights on returning to work following her maternity leave.
Protection against discrimination and unfair dismissal
Following a stillbirth, a woman is protected against unfair treatment, discrimination and unfair dismissal because of pregnancy, childbirth and her absence on maternity leave.
Bereavement leave and pay
Both the woman and her partner may also qualify for statutory parental bereavement leave and pay (in addition to maternity and paternity leave): this is a statutory right to take one or two weeks off work following the death of a child under 18 years of age or a stillbirth. The right to bereavement leave is a ‘day one’ right, i.e. there is no minimum length of service requirement.
In the case of a neonatal death, the woman is entitled to maternity leave and any maternity pay or maternity allowance that she qualifies for. The maternity leave would start the day after the birth, if it had not already started. In addition, the woman is protected against unfair treatment, discrimination and unfair dismissal because of pregnancy, childbirth and her absence on maternity leave. Furthermore, both the woman and her partner may also qualify for statutory parental bereavement leave/pay (in addition to maternity and paternity leave).
Practical steps in supporting employees who suffer a baby loss
Creating a culture of trust and a supportive environment
A crucial element in the provision of effective support is the creation of a culture of trust, such that women and their partners feel confident in discussing their plans to try to have a baby and — should it occur — any baby loss.
Talking about baby loss in the workplace
The way that a manager listens and responds will affect how much the employee tells them and how comfortable the employee may feel about further disclosure. Managers should ask simple, open questions and let the employee concerned explain matters in their own words. The most important thing that a manager can do is to acknowledge what has happened and it doesn’t have to be anything complicated or profound. It’s important to share any relevant information or policies with the employee concerned and to ensure that the employee knows who else they can talk to, including providing them with details of any workplace counselling, Occupational Health or other support.
Suffering a miscarriage at work
A woman who begins to miscarry at work is likely to be upset and embarrassed but may also be fearful about what is happening. She will need privacy and support and is likely to appreciate a taxi home or to hospital and someone to go with her or to call her partner. If she is very unwell and/or in acute pain then management may need to call an ambulance. Someone who finds out that their partner is miscarrying is likely to want to leave work as soon as possible.
Supporting the employee’s return to work
Returning to work after a baby loss can be overwhelming and the following managerial actions may make things easier for someone returning to work in such circumstances:
- Check whether they feel totally ready to return to work;
- Subject to first seeking the approval of the employee concerned, consider sending an email to colleagues before their return. The manager may want to ask if the employee wants to draft it herself or whether she would like to check it over first;
- Some people find a phased return to work helpful. In any event, a 'return to work' meeting should be held on the employee’s first day back, the aim being to provide an opportunity to make them feel valued, check how they are doing and talk about any workplace adjustments that they may need. It would also make sense to agree a schedule of follow-up meetings to monitor their progress and provide ongoing support;
- Management should consider the nature of the employee’s work and the impact that it might have on them. For example:
- Do they work with babies or very young children?
- Do they work with/support or manage people who are in the same stage of pregnancy as they would have been?
Management may also need to make some allowances for their attendance and/or performance over the first few weeks and months back at work. It’s important for managers not to expect the returning employee to feel totally fine as soon as she is back at work. It usually takes some time.
If you would like to discuss any of the issues raised in this update, contact our employment law solicitors.