Sadly one in four pregnancies ends with a miscarriage, so it is essential that you understand the employment rights surrounding pregnancy loss.

We outline below the types of leave employees may be entitled to take as well as best practice advice on offering support to employees during this difficult time.

Impact of miscarriage and stillbirth on an employee’s work

The effects of miscarriage and stillbirth can be extremely traumatic and long-lasting.

Although everyone’s experience will be different, employees who experience any form of pregnancy loss are likely to suffer a range of physical and mental side effects, which will inevitably affect them at work.

Even if an employee feels well enough to return to work, they may:

  • struggle to concentrate due to lack of sleep
  • experience mood swings
  • find it hard to interact with colleagues
  • experience mental health problems

You should also remember that the distressing effects of miscarriage and stillbirth have been exacerbated during the Covid-19 pandemic.

Restrictions have prevented partners and fathers from attending appointments, meaning that women have had to receive the news alone.

Statutory right to time off

An employee’s statutory right to time off in these circumstances will depend upon how far along she was in her pregnancy.

Miscarriage before 24 weeks of pregnancy

If an employee miscarries before the 24th week of pregnancy, her legal right to time off work will be limited to sickness absence if the physical and mental side effects mean that she is unfit to attend work.

The normal rules on sickness absence will apply; therefore, the employee will:

  • be entitled to Statutory Sick Pay only unless any additional company sick pay is available.
  • be able to self-certify for the first 7 days of absence and require a doctor’s fit note thereafter.

However, we advise that you adopt a flexible approach towards your standard absence reporting procedure given her difficult personal circumstances.

You should also be responsive to requests for annual leave following sickness absence if the employee feels she needs some additional time off to come to terms with her loss.

You may have a compassionate/bereavement leave policy that entitles the employee to paid or unpaid time off work, or you may agree to a period of unpaid leave in the circumstances, but in the absence of a contractual scheme, this is entirely at your discretion.

Stillbirth after 24 weeks of pregnancy 

The loss of a baby after 24 weeks of pregnancy is legally defined as a stillbirth, and the mother will retain her full maternity rights in these circumstances.

If the employee has not already begun her maternity leave, it will start on the day following her stillbirth, and she will have the option to take the full 52 weeks.

Unless the employee states otherwise, you should assume that she will take her planned maternity leave.

The employee will receive 39 weeks’ Statutory Maternity Pay (SMP), or additional maternity pay if this is available, provided she meets the eligibility criteria.

She will also be entitled to statutory parental bereavement leave, which she may choose to take following her maternity leave.

This became a statutory right in April 2020 and allows employees who have lost a child to take two weeks’ leave within 56 weeks of the stillbirth or death of their child and receive statutory parental bereavement pay, which is the same rate as SMP.

Potential discrimination claims

Any time away from work following a miscarriage should not be taken into account for absence management purposes as doing so would amount to pregnancy and/or sex discrimination.

An employee would also be able to bring a discrimination claim if she was subjected to any detriment or less favourable treatment at work following miscarriage.

There would also be a risk of unfair dismissal if an employee was dismissed for any reason related to miscarriage.

Rights of the father or partner

Although the father or mother’s partner will not experience the physical effects of the miscarriage or stillbirth, they will also feel emotional distress and grief.

Their statutory right to time off in the circumstances will also depend upon whether the miscarriage occurs before or after the 24th week of pregnancy.

Miscarriage before 24 weeks of pregnancy 

The father or partner of someone who miscarries before 24 weeks will be entitled to a reasonable length of emergency time off for dependants to support the mother through the miscarriage.

Unless company policy specifies otherwise, such time off will be unpaid.

It is possible that the emotional distress of the situation will cause the father or partner’s mental health to suffer to the extent that they are unable to return to work and must take a period of sickness absence.

They may also qualify for bereavement or compassionate leave if you have a relevant discretionary policy in place.

Stillbirth after 24 weeks of pregnancy

In addition to the leave entitlements outlined in the previous section, the father or partner of someone who miscarries after 24 weeks or has a stillbirth will retain their paternity rights.

Therefore, provided they meet the eligibility criteria, they will be entitled to take two weeks’ paternity leave and receive statutory paternity pay during this period.

They will also be entitled to take statutory parental bereavement leave following their paternity leave.

Miscarriage policy

It is helpful to have a policy that establishes the company’s procedure for supporting employees in these difficult circumstances.

This will enable you to advise employees on their rights and offer support in a sensitive manner and ensure a consistent approach across the business.

The policy will provide a reference point for managers so that they can clearly inform the employee of any right to time off and pay, as well as any support measures the company can offer.

Having a miscarriage policy will also raise awareness and show that the company is sensitive to the issue, encouraging employees to open up. 

Supporting the employee’s return to work 

As an employer you should offer emotional and practical support to employees who have been affected by miscarriage or stillbirth.

Communication

Many people find it very tough to speak about miscarriage and stillbirth as they don’t know what to say and are afraid of accidentally causing offence.

However, it is essential that you offer your condolences and support to an employee if they disclose their miscarriage or stillbirth to you, as failure to acknowledge their difficult personal circumstances can lead the individual to feel isolated and unsupported.

A good approach would be to arrange a meeting with the employee prior to their return to discuss:

  • anything you can do to make them feel more comfortable returning to work; and
  • whether they would like colleagues to be informed and if so, how they would like this to be communicated.

This meeting should be conducted sensitively so that the employee doesn’t feel pressured to return to work if they are not ready yet.

Sensitivity

You should be aware of the employee’s trauma and take steps to reduce the impact of potential triggers in the workplace.

For example, pregnancy announcements may cause the employee distress.

It is also important to consider the long-term effects when managing any performance or conduct issues.

Although an employee may feel well enough to work, they may still find it hard at times, particularly on anniversaries and due dates.  

You should ensure that colleagues show compassion and are sensitive to the issue and you may need to provide training or guidance where appropriate.

Providing a supportive and open work environment will not only help employees to return to work quicker but may also increase their commitment to the business in the long-term.

Emotional support

Depending upon the resources available to your business, you may be in a position to offer the employee counselling or therapy services.

Alternatively, you could signpost the employee to external organisations like Miscarriage Association and Sands who can provide specialised support and counselling. 

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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