By Laura Penny and Jessica Wicker, managing associates at Mishcon de Reya LLP
Pregnancy and baby loss is sadly more common than many people think; one in four pregnancies end in miscarriage; one in 200 babies are stillborn in the UK each year and the neonatal mortality rate in England in 2019 for babies born at 24 weeks and over was 1.4 deaths per 1,000 live births.
In this article, we address the current position under UK employment law and highlight options available to employers to go beyond their statutory obligations regarding these difficult issues.
The experience of pregnancy and baby loss is poorly understood, mainly due to the fact that these issues are often approached with a sense of taboo and that people feel awkward addressing them. As with so many things, the only way to break a taboo is through discussion. But employers, colleagues, friends, or family members, can often be so concerned about saying the ‘wrong’ thing that they say nothing at all.
For the person suffering the loss, they can often be too afraid or ashamed to step out of the ‘norm’ and talk about things that are usually hidden, particularly in the workplace.
Channel 4 and Monzo have recently announced new policies designed to support staff who have suffered pregnancy and baby loss. They are nuanced, but the key function of all of these policies is to allow for periods of leave and pay specifically in circumstances of baby or pregnancy loss. The other common thread is that they apply to both parents, a step forward in a world where partners are often not catered for.
These policies aim to start addressing these difficult issues and encourage a more open approach to baby and pregnancy loss. Despite the broadly positive reception of these policies, there has been some discussion about whether the introduction of policies such as these is always a positive step. Is it a valuable recognition of these particular situations? Or is it the start of a race to minimum cover with the risk that an otherwise more flexible (and sometimes more generous) approach by some employers becomes replaced with a ‘one size fits all’ standard period of leave and/or pay?
Current employment law position on pregnancy loss
Despite the statistics, under current UK employment legislation, an employer is only obliged to allow parents to use maternity or paternity leave and receive any statutory pay if their baby dies after 24 weeks of pregnancy. Any pregnancy loss that occurs before 24 weeks of pregnancy does not entitle an employee to any leave or pay. In most cases, (outside of sickness absence) it is up to the discretion of the individual employer whether to offer compassionate leave, annual leave, or unpaid leave in these circumstances.
In our view, the statutory cover fails to recognise the trauma that pregnancy and baby loss can cause. So what else could you as an employer do to help support your employees affected by pregnancy or baby loss? In all cases, consider whether to extend the support, including partners and those using a surrogate, and consider disregarding any question of the length of service. Options to consider include:
Offering paid leave for employees who have been affected by any type of pregnancy loss
Offering paid leave for medical appointments relating to pregnancy or baby loss (including but not only, medical examinations, diagnostic scans, blood tests, and mental-health related appointments)
Establishing support systems for those returning to work after pregnancy or baby loss and to those pregnant after pregnancy or baby loss, including putting in place buddy schemes
Facilitating flexible working for those employees who have suffered any type of pregnancy loss
Offering a phased return to work, particularly following a period of leave after pregnancy or baby loss
Promoting the use of Employee Assistance Programmes where applicable
Updating private medical policies where possible to include medical treatments relating to or arising from pregnancy loss (including but not limited to miscarriage, stillbirth, molar pregnancy, ectopic pregnancy)
Encouraging all employees and managers to educate themselves about pregnancy and baby loss and the impact this may have on colleagues’ lives, both personal and professional Ensuring that immediate colleagues of those affected by pregnancy or baby loss are provided with the necessary information to support a colleague returning to work after pregnancy or baby loss
When employers commit to supporting people in areas of their lives that permeate the professional and personal life divide, they are not only supporting the emotional well-being of their employees but also protecting their talent. In an ideal world, every employer would offer a tailored and individual approach to anyone going through baby or pregnancy loss, rather than relying solely on a one size fits all policy, but that is sometimes not possible.
However, these policies (and their publication) are an important starting point, which will hopefully lead to positive changes for an increasing number of employers and their employees. The interest in these stories has plainly demonstrated that there is a desire for an open conversation on these issues. If you are interested in exploring introducing something similar or hearing about other ways in which we can advise and support your organisation, please do not hesitate to get in touch with Laura Penny or Jessica Wicker.
To find out more about Mishcon de Reya, click here.
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