Employers & Employees

When it comes to baby loss and bereavement, this can be very difficult for both employers (as they seek to support their employee’s through the pain and trauma of loss, whether during pregnancy, at birth or in infancy), and for the employee going through the loss. Below are the legal rights that exist for all employed workers, with guidelines of how employers have to respond legally, but also how it is more helpful to respond compassionately.

Employees

What you may or may not be entitled to following baby loss, will depend on what gestation in pregnancy you were, when you suffered the loss, and also the terms of your employment (your contract.)

Miscarriage

If you suffer a miscarriage (a loss before the end of the 24th week of pregnancy in the UK), you will not be entitled to maternity leave or pay. Your GP should be willing to sign you off with a sick note.

Under the terms of your contract, if you take ‘sick leave due to miscarriage’, this may be regarded by your employer in the same way as ‘sick leave due to a pregnancy related illness’. This means you should not be limited in the amount of sick leave you take, and it must be recorded correctly in your employment file, and will not count towards your sickness record. If this is not part of your employment contract, your employer is still legally obliged to treat you fairly.

Sick pay will depend on your contract, as you may be entitled to contractual sick pay, or simply Statutory Sick Pay (SSP).

Stillbirth or loss after birth

A stillbirth (a loss after the 24th week of pregnancy, up to and including birth in the UK) or a loss just after birth, gives full entitlement of your maternity rights. If your maternity leave has started, you need not take action, however if the birth happens before the intended start date of your maternity leave, or before notice has been given to your employer, you must notify your employer immediately, and the maternity leave will start from the day after the birth.

If working, you will have rights to Statutory Maternity Pay (SMP) and may be entitled to Maternity Allowance. If not working you may be able to claim Income Support.

If you have suffered a loss after birth, you may be entitled to Child Benefit and Child Tax Credit, and possibly Working Tax Credit.

A Funeral Expenses Payment may also be claimed in some circumstances, if you are claiming a qualifying benefit, which include Income Support, Jobseeker’s Allowance, Housing Benefit and others.

Employers:

As an employer, the care of your staff will of course be your primary concern, and as such one of your employees suffering the loss of a child, whether due to miscarriage, stillbirth of loss after birth, should be treated with patience and care.

For many employers, the first they will be aware that an employee is pregnant will be following their 12-week scan, when many women feel confident to announce their good news. However, as the majority of miscarriages happen during the first 12-weeks, often the first the employer will know of a pregnancy will be an employee having to explain their loss.

Please note, the employee will likely be distressed at the experience they are going though. The attitude of the management and co-workers has a direct effect on how women and their partners handle the loss, and how quickly they will feel able to continue their work. A supportive attitude by management, including flexibility in employees working arrangements, will help to motivate them and encourage their commitment to their work.

Most women will need to have some time off work, some for days, some for longer (as loss affects each person differently) and this can be signed off by a GP, should you require it. Additionally, partners of people who have suffered a loss, may also need leave for themselves or to allow them to take care of their partners and families. Stress over taking time off of work, and loss of pay can add to what is already a difficult time, so compassion from an employer will always be appreciated.

  • Legally all pregnant employees are allowed paid time off work for Antenatal appointments, and for anyone at risk of miscarriage, the number required will increase.
  • If an employee needs time off, as she is ill as a result of a miscarriage, the sickness absence should be treated in the same way as pregnancy related sickness.
  • Any time off for pregnancy related illness cannot be included in calculations for sickness, and cannot be used as grounds for dismissal, for any disciplinary procedures, or in any decision relating to promotion or pay.
  • Be aware of Health and Safety issues affecting anyone who is pregnant, and conduct a Risk Assessment to assess any issues that their duties, or work environment may pose.
  • If an employee suffers a stillbirth (loss after 24-weeks of pregnancy in the UK), she is entitled to maternity leave and protection from any pregnancy and maternity discrimination, in the same way as if the employee had a live birth.

For further advice and regulations, please visit www.gov.uk and download the Pregnancy and Work Leaflet (PDF).

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