We know that the subject matter of this blog may be upsetting, particularly to those who have experienced a pregnancy loss, so please be aware that in this blog we will be discussing stillbirth i.e. pregnancy losses after the 24 week mark.
Pregnancy loss is a sensitive, devastating topic but one that unfortunately affects as many as one in four pregnancies.
Despite this, the subject of pregnancy loss has historically been a taboo subject within society generally; as such, it is far from surprising that this subject has often been avoided or difficult to raise within the workplace.
In this blog we will be focusing on a particular type of pregnancy loss referred to as a stillbirth and the legal considerations for employers whose employees are going through this distressing experience. In our second blog on stillbirth, we will consider the additional support that employers can offer their employees who are impacted by stillbirth.
What is a stillbirth?
Legally, a stillbirth is when a baby is born deceased after 24 complete weeks of pregnancy. Whilst pregnancies can, unfortunately, be lost before 24 weeks, this is usually referred to as a miscarriage or, in some cases, a late foetal loss.
The 24-week mark is both legally and medically significant since this is the clinical age of viability where a premature baby has some chance of survival.
According to the NHS, around 1 in 200 births in England result in a stillbirth. The charity Tommy’s reports that this is equivalent to eight babies being stillborn or “born sleeping” every day.
What legal entitlements do employees have following a stillbirth?
If any employee experiences a stillbirth, they remain entitled to maternity leave. This will start automatically after the day of the birth (if their maternity leave has not already started). The employee is also subject to the normal compulsory two week period of maternity leave immediately following the stillbirth, during which the individual is prohibited from working. The normal rules surrounding ending maternity leave continue to apply; which means that an employee can take the full 52 weeks’ maternity leave following a stillbirth, should they choose to do so.
Employees also remain entitled to maternity pay subject to the usual eligibility criteria; albeit if the baby dies before the end of the qualifying week for Statutory Maternity Pay (SMP), special rules apply in determining whether the employee qualifies for SMP.
Since 6 April 2020, employees have a statutory right to up to two weeks of Parental Bereavement Leave following the death of a child, or a stillbirth. This can be used at any time in the first 56 weeks after the stillbirth has occurred. If the eligibility criteria are met, employees may be able to claim statutory bereavement pay during this period.
Likewise, an employee may be eligible to take paternity leave and pay (assuming they meet the usual eligibility criteria); although if the stillbirth occurs before the end of the 14th week before the expected week of childbirth, special rules apply in determining whether the employee meets the eligibility criteria for paternity pay.
In relation to Shared Parental Leave, the legal position is not as clear cut, but as it stands it appears unlikely that the right to Shared Parental Leave would be engaged following a stillbirth.
A petition was recently undertaken (and a Bill has been introduced) to extend statutory bereavement leave to pregnancy loss before 24 weeks, as the present position is that those who suffer a miscarriage or foetal loss are not entitled to any statutory period of bereavement leave; instead, they currently have to rely on sickness absence, unpaid leave and holidays, and/or their employer’s discretion. We have considered the position regarding miscarriage in more detail in our previous blog that can be accessed here.
Legal risks
As well as ensuring compliance with the minimum legal protections for employees who have suffered a stillbirth, employers should also be mindful that a stillbirth could leave a long-term physical or mental impairment, which may amount to a disability for the purposes of the Equality Act 2010. In this case, the employee would be protected from suffering discrimination either directly, indirectly or from anything arising in consequence of their disability. The employer would also be under a duty to make reasonable adjustments.
Furthermore, poor and unfavourable treatment of employees who have experienced a stillbirth could give rise to claims for sex and/or pregnancy discrimination.
Employers should be careful that they do not discriminate against employees because they have been pregnant and/or may want to try to have a baby again in future. For example, an employer who passes over an employee for a promotion opportunity on the basis that they assume that they will want to try and get pregnant again following a stillbirth will be discriminating against them.
Contact us
As stated previously, pregnancy loss is a sensitive and difficult topic. However, by getting the conversation going and raising more awareness of pregnancy loss and how this translates into the workplace, we can break the stigma together and ensure that employees and their partners are properly supported and taken care of during these difficult times.
If your organisation requires support and advice in relation to managing pregnancy loss in the workplace, whether this is to get started on implementing policies and procedures or a specific employee matter, please get in touch with a member of our Employment Team who will be able to assist.
This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
