Miscarriage and the Law

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 miscarriages i.e. pregnancy losses before the 24 week mark.

For legal purposes, a miscarriage is the loss of a baby during the first 23 weeks and 6 days of pregnancy, whereas a stillbirth is when a baby is born deceased after 24 completed weeks of pregnancy.

The NHS reports that among women who know they're pregnant, an estimated 1 in 8 pregnancies will end in miscarriage. The charity Tommy’s cites evidence that 85% of these miscarriages happen in the first trimester (weeks 1 – 12 of pregnancy). The risk of miscarriage also rises significantly with age.

Sadly, therefore, miscarriages are much more common than many people realise.

But, despite the fact that most organisations will have staff who have been, or will be, affected, miscarriage continues to be a taboo subject within the workplace. The narrative must change as otherwise we risk isolating individuals, their partners and families, and leaving them without much-needed support during this difficult time.

In this blog, we’ll be taking a look at the legal protections afforded to employees following a miscarriage. In our second blog on miscarriage, we’ll consider why employers should provide additional support to employees impacted by miscarriage and we will highlight some of the different forms that additional support can take.

What legal protections are afforded to employees following a miscarriage?

Having a miscarriage can be a very distressing experience and there is no set time period for an individual to come to terms with this devastating loss. Some may want to keep it to themselves, whereas others may feel comfortable speaking to others about it.

Depending on the stage of their pregnancy, individuals may not have spoken to their employer about their pregnancy yet, not least because of the social expectation that pregnancy “should” only be “announced” after the 12 week scan. As a result, many individuals find themselves dealing with this tragic loss behind closed doors, and without the support or understanding of their colleagues or employer (or their families/usual support network).

So, what legal rights do employees have in this situation to support or time off? 

Unfortunately, the answer is very few because most of the rights in relation to bereaved parents only apply to still births i.e. losses after the 24^th week of pregnancy.

For example, “Jack’s Law” came into force on 6 April 2020. From this date, all employees who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, are entitled to 2 weeks' statutory Parental Bereavement Leave, and in some cases, Statutory Parental Bereavement Pay (if certain eligibility criteria are met).

Disappointingly these statutory rights do not extend to miscarriages, even though the pain and grief these parents feel may be equally as devastating as for those who lose their baby at 24 weeks.

In light of this, a petition was started this year to extend statutory bereavement leave to pregnancy loss before 24 weeks. In response to the petition, however, the Government confirmed that there are no plans to extend Parental Bereavement Leave and Pay and that it would “encourage employers to support women who have suffered a miscarriage and respond sensitively to each individual’s needs.”.

In spite of this view, a Labour MP has recently introduced to Parliament a Private Member’s Bill to try and remedy this difference in treatment. According to the UK Parliament website, the purpose of The Bereavement Leave and Pay (Stillborn and Miscarried Babies) Bill is to “extend entitlement to parental bereavement leave and pay to parents of babies miscarried or stillborn during early pregnancy; and for connected purposes”. The second reading of the Bill in the House of Commons is on 25 February 2022. We will be monitoring progress with interest.

Pending a positive outcome of this Bill, individuals who experience a miscarriage have no legal right to seek time off to recover from the experience or deal with the grief they may be experiencing. 

Instead, if they are unable to attend work, they usually have to rely on being signed off sick by their GP/hospital (in which case they would be entitled to statutory sick pay/contractual sick pay in the usual way).  

Where employees need time off but are not “sick” (or where they are reluctant to present a sick note that might refer to a pregnancy loss to their employer, in case this has a negative impact on them), employees may look to use their annual leave entitlement to give them some time off.

Of course, in some cases, employees may seek to agree to a period of leave with their employer (either on a paid or unpaid basis) but this would involve the employee feeling comfortable enough to disclose their pregnancy loss to their employer in the first place, which they may not feel able or want to do. This is particularly the case if they fear that their “card will be marked” once their employer knows they have been pregnant/are trying for a baby.

Legal risks

As well as ensuring compliance with the minimum legal protections for employees who have suffered a miscarriage, employers should also be mindful that a miscarriage 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 miscarriage 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 the 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 miscarriage will be discriminating against them.

Beyond legal protection?

In our next blog, we’ll be considering why employers should provide additional support to employees impacted by miscarriage and provide practical examples of the forms that additional support can take.

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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 supporting staff affected by miscarriage, 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.

We have also written a supporting blog, which you can read using the link, 'Miscarriage: beyond the legal protections, what more should employers do?'

This article 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.