Pregnancy Loss – a gap in the law

Sadly miscarriages are much more common than many people realise, with an estimated one in four pregnancies ending in miscarriage (which is defined as the loss of a pregnancy within the first 23 weeks and six days of pregnancy).  Pregnancy loss can be a distressing and traumatic experience; however, pregnancy loss can sometimes be viewed as a taboo issue within the workplace and many employees find it uncomfortable addressing or discussing it. As a result, employees going through pregnancy loss may feel embarrassed or shy to request leave for fear of being put at a disadvantage amongst their colleagues. Suzanna Ghazal, Solicitor, looks at the current legal framework on still births and pregnancy loss and considers ways in which employers can support their people. 

Legal Framework

Under ‘Jacks Law’, if a still birth occurs after 24 weeks of pregnancy, birth mothers and fathers are entitled to statutory paternity leave and pay (subject to meeting eligibility criteria). They will also qualify for 2 weeks’ statutory parental bereavement leave and pay. Unfortunately under the current legislation there is no legal entitlement to leave or pay in situations where pregnancy loss occurs before 24 weeks. In these cases, it is up to the employer whether to offer compassionate leave, annual leave or unpaid leave. I suspect many employees will simply take sickness absence, leaving many businesses unaware of what is really the reason for the absence.

A change in the law?

There is a Private Member’s Bill titled ‘The Bereavement Leave and Pay (Stillborn and Miscarried Babies)’ which is aimed to deal with the gap in the law on miscarriages. The second reading of the proposed Bill was due to take place last month on 6 May, however it appears that the reading is still in progress. Once the second reading is complete the Bill will proceed to the committee stage where each clause and the proposals for change to the Bill may be debated. After the Queen’s Speech omitted to address the Employment Bill last month it may be a while until we see the outcome of this Bill.  

Policies

Employers are increasingly recognising the importance of supporting employees through pregnancy loss and are implementing policies which address the matter. By example, Channel 4 and Co-op have implemented policies on pregnancy loss and are offering flexible support. Co-op’s policy supports both parents who have been affected – whether it happens directly to them, their partner or their baby’s surrogate mother.  

Policies should look to cover the loss of a baby through miscarriage, embryo-transfer loss, molar pregnancy abortion, stillbirth, ectopic pregnancies and neonatal pregnancies (although this list is not exhaustive).

A formal policy which offers paid leave (commonly 2 weeks’) to an employee going through pregnancy loss is a step in the right direction. A policy sends a clear message that an employer recognises that loss of a baby can be traumatic and gives reassurance to employees that they will be supported.  

What else can employers do to support their employees through pregnancy loss?

• Raise awareness on pregnancy loss – it is important that staff (particularly HR and managers) know how to support employees through these difficult times and the first step is often to raise awareness and offer training. Training should aim to educate on pregnancy loss and provide direction on how to sensitively deal with the matter.
• Signposting resources which offer support. You may hold an Employee Assistance Programme which may be beneficial for employees going through pregnancy loss. You may also have Mental Health First Aiders which can assist depending on the employee’s circumstances.   
• Offering paid leave to attend medical appointments relating to their pregnancy loss.
• Offer a phased return to work for those that take leave. Often coming back to work full time after pregnancy loss can be daunting and so it may be appropriate to offer a phased return to work and/or flexible working.
• Hold conversations with the employee in respect of announcing the loss of their baby within their team. This is where staff training comes in handy – if staff are trained on how to deal with pregnancy loss they will know how to communicate the matter appropriately. Employers should be sensitive to the employee’s preference on how information is conveyed about leave.

How we can help

It is important to appreciate that people react to trauma and grief in different ways and respond with a variety of different emotions. Whilst a policy on pregnancy loss is a step in the right direction, there will never be a one size fits all. It is important to consider every employee’s circumstances and respond appropriately. An employer who is supportive and offers help where needed is an employer who ultimately retains talent.

If you require assistance with drafting policies on pregnancy loss or would like staff training to raise awareness on pregnancy loss and how best to support employees through this difficult experience, please do not hesitate to get in touch with our Employment Team at Boyes Turner ([email protected]).  

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