Compassionate leave for miscarriage

For employees who have suffered a miscarriage, time off work and the support they receive from their employer can be an important part of their recovery.

But under current rules, employees who miscarry before the end of 24 weeks of pregnancy have no statutory to take maternity leave or claim maternity pay. Following stillbirth or neonatal death, employees may benefit from statutory entitlements.

With one in four pregnancies ending in miscarriage, and one in 250 resulting in a stillbirth, employers should ensure HR and managers are trained and aware of employees’ rights and how to provide support, particularly where the employee is experiencing issues such as post-traumatic stress.

A lack of support for employees following miscarriage, stillbirth or neonatal death can reduce productivity, lower standards of work, increase absenteeism, and sometimes result in resignation. How should employers approach supporting staff following miscarriage, stillbirth or neonatal death?

Miscarriage

If a baby is born before the end of the 24th week of pregnancy, it is treated as a miscarriage. Women who have suffered a miscarriage will not qualify for maternity leave or pay. This includes paternity or shared paternity leave.

Since there is no statutory obligation in this area on employers, there is considerable variation in how organisations handle requests for time off work following a miscarriage. Employees may have to rely on their employers’ discretion to offer compassionate leave, annual leave or a period of unpaid leave. This can add to the distress and worry for employees who may feel they have to negotiate and convince their employer to give them time off. Employers are encouraged to state their position on leave following a miscarriage in a policy which is easily accessible to staff.

If you do not have any specific policies in place relating to miscarriage or stillbirth, their GP can sign the employee off sick and they can take sick leave.

Sick leave following a miscarriage may be protected in the same way as sick leave for pregnancy-related illness. The employee is not limited in how much sick leave they can take, although it must be recorded as pregnancy-related sickness and must not be counted towards the employee’s sickness record. The employee’s sick pay should be paid in the same way as for any other employee. This may be contractual sick pay, or just Statutory Sick Pay (SSP). If the employee does not earn enough to claim SSP, or their SSP runs out, then they may be entitled to Employment and Support Allowance (in some areas, this has been replaced by Universal Credit).

As an employer, you must ensure you treat the employee fairly. It is unlawful to dismiss someone for absence directly caused by miscarriage.

Stillbirth

If the baby was delivered after the end of the 24th week of pregnancy, this will be considered a stillbirth. In such cases, the employee is entitled to maternity leave and any maternity pay they qualify for.

Rights following a stillbirth include:

The right to 52 weeks maternity leave, with the right to return to the same job.
Statutory Maternity Pay (SMP) and Maternity Allowance (MA), which are paid for 39 weeks to those women meeting the qualifying conditions. It is important to note that SMP and MA are not classed as public funds.
The employee is protected against any unfair treatment, discrimination, and unfair dismissal because of the pregnancy, childbirth and absence on maternity leave.

Agency workers, casual workers, and those on zero-hour contracts are not entitled to maternity leave, unless it is stipulated in their employment contract. However, they can still get maternity pay.

Neonatal death

If the baby died within the first 28 days of life, this is considered a neonatal death. If the baby was born alive at any time during the pregnancy but did not survive, they are entitled to maternity leave, and any maternity pay providing they meet qualifying criteria. They may also qualify for parental leave/pay.

Parental Bereavement Leave & Pay

Following a stillbirth or the death of a child under the age of 18, providing the employee gives you the correct notice, they can take two weeks’ parental bereavement leave. This right applies from the employee’s first day of employment. They can take the leave any time from the date of the death or stillbirth up to 56 weeks.

If the employee wishes to take their leave immediately (or up to 8 weeks after the baby’s death or stillbirth), they must inform you before they normally start work in the week they wish to take the leave. For leave between 9 to 56 weeks after the baby’s death or stillbirth, the employee must inform you at least a week before they wish to take leave.

The notice must be given either by phone, email or other message and include the date of the baby’s death or stillbirth, the date they wish to start the leave, and whether they intend to take one- or two-weeks’ leave. The employee can take each week separately and although they do not have to provide proof of the death or stillbirth, they must complete a declaration. This declaration can be found on the gov.uk website.

An employee is entitled to statutory parental bereavement leave pay of £151.97 per week (April 2021 – April 2022) for up to two weeks. This includes employees, agency workers and those on zero hours contracts who have been continuously employed for at least 26 weeks immediately before the death or stillbirth of the baby, and they earn at least £120 per week before deductions in the eight weeks (if they are paid weekly) or two months (if paid monthly) before the week in which the baby died or was stillborn. If the employee was on furlough during that period, you must use their normal earnings, not their furlough pay.

Parental bereavement leave/pay can be taken in addition to any maternity leave they qualify for and they may qualify for it even if they do not qualify for SMP.

Paternity & shared parental rights

For employees who are eligible for paternity leave, they will still be entitled to take this following a stillbirth. It must be completed within 56 days of the birth, although if the baby was born prematurely, the leave must be completed within the period between the actual date of birth to 56 days after the expected week of birth. Statutory Paternity Pay also applies in the same way if they are entitled to it.

The rules are slightly different for shared parental leave and pay if the baby dies. If either parent gave notice before the birth of the baby of their intention to take shared leave and the baby is born but then dies, the parents remain entitled to take the leave already booked. Cancelling booked shared leave requires a notice period of eight weeks. Although you may come to an agreement with your employee that they will take less leave than they had previously planned.

If the baby dies before the parties had given notice to book shared parental leave, then any further entitlement to such leave will be lost.

In the case of a stillbirth (where a baby is born after 24 weeks of pregnancy), the regulations are unclear, but it seems unlikely they will be entitled to shared parental leave. In such cases, the mother can still take maternity leave and their partner can still take paternity leave, providing they are eligible.

Best practice guidance for employers

Compassionate leave policy for miscarriage

There are certain things you can do to make it easier for any member of your workforce experiencing a loss. As well as having a good maternity policy, it is perhaps also wise to incorporate a miscarriage policy too.

From an employer and employee’s perspective, everyone feels more secure when their rights and responsibilities are clear. A policy or guidance note can formalise existing processes and ensure there is consistency. It can also help to make miscarriage less taboo and make sure people feel able to ask for support.

Some employers offer paid compassionate leave as part of employee contracts or internal policies. It is accepted that most women will require time away from work to recover both mentally and physically, and their partners may also need time to process and recover from the loss. It is essential that affected employees feel comfortable discussing this openly without fear of dismissal or receiving warnings.

A miscarriage policy could be part of a larger policy including pregnancy loss, stillbirth, miscarriage, ectopic and molar pregnancy, and also termination for foetal abnormality. This year, Channel 4 announced new policies offering both male and female employees paid time off for pregnancy loss and fertility treatments, heralding a move ahead of the times which promotes staff loyalty and in turn aids employee retention.

Discrimination

The Equality Act 2010 protects against discrimination on the grounds of pregnancy or pregnancy related sickness. It covers a period of two weeks from the end of a pregnancy for those women who are not entitled to maternity leave. It protects women:

Being discriminated against for any sick leave taken because of a miscarriage
If they have been discriminated against following this period, they can make a claim for sex discrimination. However, they will need to prove they have been treated less favourably than a man who has taken sick leave.

The effects of loss in the workplace
Miscarriage, like any other loss, and the grieving process affects people in different ways, but common issues associated with it can include:

Difficulty sleeping
Finding it difficult to concentrate or feeling demotivated
Struggling with social interaction
Mood swings
Feeling tearful and/or irritable
Finding it difficult to manage their mental health.

Such feelings may affect their productivity or ability to manage a work environment. It is therefore essential that good communication and support are put in place to help them manage their work and recovery.

Tackle cultural barriers

Women may remain quiet or reluctant to tell people about miscarriage for a variety of reasons. Statistically, female employees who give their employer an indication of their desire to start a family are less likely to secure promotion and tend to be paid less than their male counterparts. They are seen as a ‘cost’ to the business rather than an ‘asset’; this is known as the ‘parent bias.’

Beyond the statistics and parent bias, having a miscarriage is a truly devastating experience. Ensure you are taking a proactive approach to fostering an open and supportive culture where employees know who they can go to within the organisation for help and support with any personal issues they may be experiencing, such as fertility, pregnancy or maternity-related matters.

Return to work support following miscarriage

Employers need to know that because miscarriage is such a common and widespread issue, most workplaces are likely to have staff who have been or may be affected. And that the physical and mental repercussions will not always follow the same timeline. The nature of grief ebbs and flows from hour to hour, and day to day. The following considerations may make your employee’s first weeks back at work easier.

Think about allowing your employee to take time out when they feel things are getting on top of them.
Speak with them and see if any reasonable adjustments can be made that could help protect their wellbeing. An employer is required by law to consider making reasonable adjustments to help the employee do their job if they have a disability – this includes mental health issues.
Talk about possible triggers, and what can be done to ameliorate these whilst at work.
The employee may not feel able to tell their colleagues what happened, ask them if they would like you to tell people for them.
Perhaps a phased return where the employee works reduced hours for a period or undertakes different duties.
Some employees may find flexible working or hybrid working between the workplace and home helpful.
Consider whether the business can offer more support, such as professional counselling, for example.