October marks pregnancy and infant loss awareness month with baby loss awareness week marked specifically between 9 to 15 October.

Taboo

It remains a silent subject, one that is rarely acknowledged, let alone openly spoken about. This year a number of charities are working together to raise awareness and understanding of pregnancy and infant loss.

The impact on an individual after the tragic loss of a baby is significant, and it is noteworthy that we reference the ‘individual’ and not just the mother. The magnitude of emotions after such a loss are incomprehensible, and in the workplace context, the support offered by an employer will be crucial to the healing process physically, emotionally and often financially.

Employment rights are understandably the last thing on an employee’s mind after such a loss. We remind employers to be sensitive to the facts of the individual’s situation, whilst ensuring that they are aware of their obligations as an employer.

The law

If a baby is born and survives only for an instant, this is to be treated as a live birth and the relevant maternity rules will apply in relation to maternity leave and pay.

Before 24 weeks

A baby lost before the 24th week of pregnancy is termed a ‘miscarriage’. A loss at this point in the pregnancy does not trigger any entitlement to statutory maternity, paternity or shared parental leave pay. There is an automatic set period of permitted absence and therefore technically an employee is required back to work with immediate effect.

In reality, an employee is likely to be signed off work sick for a period of time to convalesce and employers should be mindful of sick pay entitlements during this absence and that normal sickness absence procedures apply.

In addition to any contractual or statutory sick pay entitlements, employers may consider allowing a period of time off for compassionate or unpaid leave. It is crucial that employers have consideration for the emotional wellbeing of employees returning to work and possibly consider making reasonable adjustments to facilitate their return to work.

Fathers are often forgotten about and we advise employers to be alive to the emotional impact under these sensitive circumstances and to take necessary steps to support any absence and subsequent return to work. The employee may well be entitled to statutory time off for dependants.

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.