With around one in five pregnancies ending in miscarriage in the UK, it is likely that most workplaces have employees who have been or may be affected by a miscarriage.
It is therefore surprising that, whilst most workplaces will have a maternity policy, many do not have policies relating to miscarriages.
The result is that employees often do not know their rights and employers have no guidance on how to help and/or what to say.
The term “miscarriage” in this article refers to miscarriages and ectopic and molar pregnancies between 6 days and 24 weeks gestation.
Employees who have experienced a miscarriage
Many employees who have experienced a miscarriage may not feel comfortable talking about their loss with their employer openly for fear of being stigmatised or discriminated against.
Sick Leave
Some may not feel ready to return to work straight away but are worried that time off will affect their sickness absence record or result in disciplinary sanctions. This should not be the case, as employees on sick leave following a miscarriage (be that for physical or mental reasons) qualify for “pregnancy-related sickness leave” and are protected by discrimination legislation.
This means that an employee’s absence cannot be used against them, for example to discipline them, make them redundant, or refuse a promotion.
Employees who are absent on pregnancy-related sickness can be off for as much time as they need, so long as the absence is certified as “pregnancy-related” by their GP, and are entitled to statutory sick pay during this time.
Partners of individuals who have experienced a physical loss are not entitled to pregnancy-related leave or sickness absence.
Flexible working
Some employees are not comfortable returning full time straight away, and employers should consider offering a phased return to the office.
If a phased return is not an option, employees are entitled to request flexible working, and this request should not be unreasonably denied.
Confidentiality
Employees have a right to keep their miscarriage private and this right to privacy should be respected. Employees can decide who (if anyone) their miscarriage should be disclosed to, but should be aware that they will need to inform management/HR in order to benefit from pregnancy-related protections.
How to help your employee
Whilst a miscarriage policy is key to ensuring that management and HR are aware of their responsibilities when an employee has been affected by a miscarriage, it is not enough.
Employers should also promote a supportive environment and a culture of openness and trust. This will ensure that employees will feel comfortable enough to seek the support they need, and help tailor a plan for their return to work. Employees who feel properly supported are more likely to have a successful return to work, whilst failure to offer the correct support could lead to a potential resignation and/or employment claim.
We would therefore recommend the following:
- have a miscarriage policy;
- create a supportive work-place environment;
- offer support to each employee and create a specific plan for their needs upon return to work;
- ensure awareness of the miscarriage policy and that pregnancy-related leave is protected under discrimination legislation;
- respect confidentiality.
If you are affected by similar issues or would like to have a related discussion in confidence regarding employment matters, please contact Marianne Johnson or any member of our expert Employment Team on 020 7631 4141 or email mjohnson@bishopandsewell.co.uk.
The above is accurate as at 20 January 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
