Baby loss awareness month
October is an official month of recognition for baby loss and it aims to raise awareness of pregnancy and baby death in the UK.
Baby loss is a loss that is often silent and rarely acknowledged by employers and colleagues in a workplace setting usually because nobody knows what to say.
Statistic from Tommy’s confirm that in 2022, around 1 in every 250 pregnancies ended in stillbirth. Approximately 8 babies were stillborn every day in 2022. In 2022, 1924 babies died in their first 28 days of life in the UK, to put that into perspective that is 3 babies out of every 1,000 babies.
Unimaginable impact
The tragic loss of a baby is unimaginable, and it is important to recognise what has happened and the impact to a person, including when they are at work. Individuals other than parents can also be affected such as close family and friends. A supportive and understanding employer can be crucial to the healing process physically, emotionally and often financially.
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Employment rights are often one of the last things on an employee’s mind after such a loss. Employers should be sensitive whilst appraising themsleves of their legal obligations and general ongoing duty of care to their employees.
Birth after 24 weeks
A baby born and surviving only for an instant is treated by the law as a “live birth”. The relevant maternity rules apply in relation to maternity leave and pay, whether these are the statutory provisions or company policies.
Loss of baby before 24 weeks
A baby lost before the 24th week of pregnancy is termed a ‘miscarriage’. The law currently does not trigger any entitlement to statutory maternity, paternity or shared parental leave pay. There is no automatic set period of permitted absence from work and therefore technically an employee is required back to work with immediate effect; or after a period of self certification / medical sick note expires.
In reality, an employee is likely to be signed off work sick for a period of time to grieve and convalesce, as well as until any medical procedures have been fully carried out if necessary. Employers should be mindful of sick pay entitlements during this absence and that normal sickness absence procedures apply; although it may be advisable to exercise some leniency during such an emotionally and physically sensitive time.
Employers should be aware that an employee who needs time off sick as a result of a miscarriage is likely to be pregnancy-related sickness, a sick note will confirm the position. There is no time limit on sickness absence following a miscarriage.
Many people would still consider miscarriage a bereavement. An employer should still consider offering time off at what can be an extremely difficult time, both physically and emotionally.
The Equality Act 2010
The law protects against discrimination on the grounds of pregnancy or pregnancy-related sickness for a protected period of two weeks from the end of a pregnancy for women who are not entitled to maternity leave. During this period employees are protected against discrimination, dismissal, redundancy or unfair treatment related to pregnancy, miscarriage or related sick leave. After the two week protected period employees may have a claim for direct and/or indirect sex discrimination under the Equality Act 2010, if they are treated unfairly because of the pregnancy, miscarriage or sick leave.
To show their support for an employee, in addition to any normal contractual or statutory sick pay entitlements, employers may consider allowing a period of time off as compassionate leave (with / without pay). Employers should have consideration for the emotional wellbeing of employees returning to work and extend this general consideration to making reasonable adjustments to facilitate their return to work if appropriate to include adjustments in the workplace or phased returns / flexible working.
Employers should also be mindful of the impact on fathers, other parent and even close family members under these sensitive circumstances and to take necessary steps to support any absences and subsequent return to work. The employee may well be entitled to statutory time off for dependants.
Loss of baby after 24 weeks
A baby lost after the 24th week of pregnancy is termed a ‘stillbirth’. Unbeknown to many employers and employees alike, a certificate of the stillbirth is issued and this triggers entitlement to statutory maternity pay (if qualifying requirements are met) or maternity allowance.
If an employee is not yet on maternity leave and their baby is stillborn, or born alive but later dies at any point after 24 weeks of the pregnancy, the right to all maternity rights is triggered and maternity leave commences the day after the birth.
Paternity rights
Despite the loss of the baby, the right to paternity leave is also triggered as long as the usual qualifying criteria are satisfied. A father may also exercise the statutory right to time off to care for a dependant (his wife) as well during this sensitive time to maximise the period of absence from work.
Shared parental leave
The rules for shared parental leave are a bit different.
If employees have already given notice that they want to share the leave, and the baby is born but then dies, both parents are entitled to take the leave they had requested and planned. If the employee(s) want to cancel any of the leave, they can do, by giving the requisite 8 weeks’ notice. However, employers should exercise some leniency under these circumstances.
If the baby dies before notice to book Shared Parental Leave has been given, then parents lose the right to Shared Parental Leave.
In case of a stillbirth (where a baby is born dead after 24 weeks of pregnancy), the regulations are unclear. It is unlikely that Shared Parental Leave can be taken. The mother can still take maternity leave and the partner can still take paternity leave and possibly time off to care for a dependent as long as they meet the qualifying criteria.
Understanding how to deal with employees who have been through miscarriage, stillbirth or whose baby dies after birth can help employers handle a sensitive situation without causing an employee further distress.
Parental Bereavement Leave
The Parental Bereavement (Pay and Leave) Act 2018 came into force in April 2020. Eligible bereaved parents will be entitled to either or both Parental Bereavement Leave and Statutory Parental Bereavement Pay.
This is an entitlement to 2 weeks’* leave from the first day of your employment for each child who has died or was stillborn, please click here for eligibility criteria: https://www.gov.uk/parental-bereavement-pay-leave/check-if-youre-eligible
The leave can be taken as follows:
2 weeks together
2 separate weeks of leave
only one week of leave
*a week is the total number of days worked in a week
The leave:
can start on or after the date of the death or stillbirth
must finish within 56 weeks of the date of the death or stillbirth
Statutory Parental Bereavement Pay
The current rate is £151.20 a week or 90% of your average weekly earnings (whichever is lower) subject to eligibility. Employers are encouraged to be supportive and provide support above and beyond the minimum rate but the new legislation means all employed parents are now entitled to paid time off to grieve and make arrangements when their child dies.
Whilst the changes are baby steps in the right direction, it is a long way from reaching the necessary support that employees need at this heart breaking time.