It has been estimated that 25% of pregnancies in the UK end in pregnancy loss. The rules regarding maternity leave and pay are fairly well understood but how these interact with miscarriages and stillbirths are the source of some confusion. In terms of the law miscarriages are where a pregnancy ends in loss before 24 weeks. A pregnancy loss after this point will be classified as a stillbirth.
If an employee suffers a stillbirth (pregnancy loss after 24 weeks) they are entitled to maternity leave and maternity pay in full. They should not be treated any differently to any other employee who has given birth. In such cases paternity leave will also be available to the father of the child or the partner of the mother. After any period of maternity or paternity leave the parents will also be eligible to take parental bereavement leave.
This is a statutory form of leave which allows parents two weeks of leave on the death of a child. It must be taken after maternity or paternity leave but it does not need to be taken immediately after. It must be taken within 56 weeks of the child’s death.
If an employee suffers a miscarriage they are not entitled to maternity, paternity or parental bereavement leave. Although it is not required by law many employers have compassionate leave policies in place. It may be worth considering treating miscarriage as a bereavement and allowing an employee time off. If policies are being expanded to include miscarriages then stillbirths should also be included.
Legally, pregnancy related absences should be treated differently to other kinds of absence. Not doing so can constitute pregnancy discrimination. Any period of pregnancy related absence should not count towards decisions to commence disciplinary action, redundancy or dismissal. If an employee is off sick after suffering a miscarriage or stillbirth these absences should be recorded as pregnancy related absences.
In the case of Stokes v Glenham Property Management Ltd  the Claimant was a very well performing employee who worked as a property manager. Her employers were notified of her pregnancy and subsequent miscarriage. After this the Claimant went on annual leave for five days (which had been pre-booked). On her return she was signed off sick by her GP for a total period of two weeks due to the miscarriage. She then received a dismissal letter from her employer citing her inability to fulfil her role due to sickness. No disciplinary process was followed.
Employees are protected from pregnancy related discrimination for two weeks after the pregnancy ends. Since the dismissal came after this period the Claimant was unable to claim this as pregnancy discrimination. She instead raised a claim of sex discrimination. The Claimant was successful as the Respondent was unable to show that a male employee would be dismissed after a two-week period of illness.
Employers should be aware of the law in this area and ensure that managers treat these issues with sensitivity.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.