October 12, 2022

Baby Loss Awareness and Employment Rights

Sad couple mourning loss

This week (9 – 15 October) is national baby loss awareness week 2022. It marks a time for those that have lost babies as well as families and friends affected by baby loss, to come together to remember much loved and missed babies, and of course, to raise awareness of pregnancy and baby loss.  Sadly, miscarriage and baby loss are much more common than people realise, with the NHS and charity Tommy’s reporting that of women who know they are pregnant, 1 in 8 pregnancies ends in miscarriage.

For HR professionals, business owners, line managers and colleagues, offering support to an employee after baby loss is often challenging. Discussing a miscarriage can be very upsetting, it can often remain a taboo subject, and Employers need to ensure that employees affected by miscarriage are treated with appropriate care and support equivalent to the support offered after a family member's death.

The legal rights

When a baby is lost before 24 weeks of pregnancy, this means that parents will not qualify for maternity benefits including maternity pay. This can come across as very unfair for those who lose baby very close to 24 weeks, but unfortunately it is the current legal position.

Employees will however be entitled to statutory sick pay (currently £99.35 per week) for up to 28 weeks, or company enhanced sick pay subject to contractual terms. Most employers would also consider some reasonable period of paid compassionate leave. Employees that suffer a miscarriage will not automatically be entitled to sick leave and would need to obtain a fit note from their GP after the initial seven day period. Partners of expectant mums that suffer baby loss before 24 weeks may also be entitled to sick leave, compassionate leave or time off for dependents.

For parents that lose a baby after 24 weeks of pregnancy, commonly referred to as a “stillbirth”, or babies born alive at any stage of pregnancy that subsequently die, a “neonatal” death, then they are usually entitled to full parental rights and benefits. This would include normal maternity leave and pay. Birth Mum’s are entitled to up to 52 weeks maternity leave and up to 39 weeks maternity pay (at statutory rates currently the lower of £156.66 per week or 90% of average earnings). Maternity leave can also be shared using Shared Parental Leave.

Dad’s and partners of Mum who lose a baby after 24 weeks of pregnancy may also be entitled to one or two consecutive weeks parental leave, as well as sick leave, compassionate leave or time off for dependents.

In April 2020 the government also introduced Parental Bereavement Pay and Leave, which can be taken after the parents have finished their paternity or maternity leave.

In addition to ensuring compliance with the minimum statutory rights, employees that suffer a miscarriage or baby loss may end up with a long term physical or mental impairment – which could be a disability under the Equality Act 2010.  Those employees are protected from discrimination arising either directly or indirectly, or as a consequence of, their disability.

Poor or unfavourable treatment of employees following baby loss can also give rise to sex and pregnancy discrimination claims.  There can also be much longer term and less obvious consequences - passing over an employee for promotion because an Employer has presumed (rightly or wrongly) that the employee will want to try and get pregnant again will be an act of discrimination.

Best Practice

A best practice for employers is to have a dedicated policy dealing with pregnancy and baby loss, which would give a specific rights to employees to take a period of paid leave. In addition to a specific policy dealing with pregnancy and baby loss, employers can also look to include miscarriage in their existing bereavement policies.

In terms of supporting an employee after a miscarriage, Employers should consider what is best for their employee depending on their specific circumstances and needs. Maintain communication through periods of absence and ensure that managers are equipped with the people skills to deal appropriately.

Supporting returns to work by agreeing to reasonable adjustments to working patterns and enabling a phased return or period of homeworking is also helpful.  Presenting employees with options and enabling them to make the decision about what would work best for them can also assist during such a difficult time.

Baby loss is a difficult and sensitive topic.  However, by encouraging conversations about baby loss and how this translates into the workplace can help breakdown the stigma associated with it.

For advice in relation to supporting employees after baby loss or implementing policies please contact our Employment team below.

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