What to do if your employee has a miscarriage, but doesn’t meet the support criteria?
There are a lot of positive changes happening now with family friendly rights in employment law, which is great news for parents or expectant parents who meet certain eligibility criteria. But how do you support employee miscarriage when they don’t meet the current legislative criteria for support?
Please note that throughout the article the term ‘miscarriage’ will include miscarriage, ectopic or molar pregnancy. If a baby is stillborn (which is a loss after 24 weeks of gestation) the law and employee’s rights are very different.
Who isn’t legible for SMP currently?
If a miscarriage happens in the first 24 weeks of pregnancy, sadly there is no entitlement to statutory maternity, paternity, or parental bereavement leave. However, if you experience pregnancy loss, it can be a devastating, lonely, and traumatic experience for both parents, regardless of how early in pregnancy the loss occurs. It’s more common than people may think and the challenges at work are often misunderstood.
If a miscarriage happens in the first 24 weeks of pregnancy, any sickness absence (be it physical or due to mental health reasons) the birth mother needs to take is likely to be considered a ‘pregnancy-related illness’. Pregnancy and maternity are a protected under the Equality Act 2010 (the Act) and if an employee is put at a disadvantage and treated less favourably because of a pregnancy-related illness this could be discrimination.
The Act also has a protected period for people who do not have a right to statutory maternity leave and this last for 2 weeks after the pregnancy ends. So, any sickness absence during the protected period should be reordered separately from other sickness absence and must not be counted towards any review/trigger points.
It would be best practice to record all absence linked to the miscarriage separately including those beyond the protected period. Partners are not legally entitled to pregnancy-related sickness absence, this doesn’t mean they are not equally affected by the loss, you might offer compassionate, or bereavement leave in this instance.
What can employers do?
An organisation should create a supportive environment, don’t assume to know what your employee is going through and how much leave you might need as everyone’s situation is different, so it is important to encourage your staff to communicate with you to better understand how you can offer support.
You may want to introduce a Miscarriage Policy which in which you can include details of any Employee Assistance Programmes, private medical insurance, any paid/unpaid leave you offer outside of other leave policies, and it may also sign post to other organisations/charities with can provide further support.
While the employee is off stay in touch with them but try not to add pressure to return to work before they are ready. Ask them what they would like their colleagues to know (if anything at all) and whether there is anything you can do to make things easier for them e.g., waiving the requirement to call in everyday of their absence. Share information with them such as EAP details, Miscarriage Policy etc. Finally, send flowers, care package, or card from the company to let the employee know they are in your thoughts.
When supporting an employee’s return to work employers should consider what’s best for their employee based on their specific circumstances. Returning to work can be overwhelming and they may feel anxious about what colleagues say, they may feel embarrassed or shame even.
You may arrange to meet before their return to work to discuss any adjustments they may need and check whether they feel totally ready to return and if not, a phased return might help. If appropriate, inform colleagues ahead of there return and provide information on how best to support their colleague.
Think about the nature of the work i.e. Do they work with babies/children or bereavement, do they work with others in the same stage of pregnancy as they would have been, do they have long shifts alone, ask what you can do to make things easier.
Finally, you may want to make some allowances for performance over the first few weeks/months back at work. In summary, remember there is no ‘one size fits all’ approach to supporting employees after a miscarriage, it effects everyone differently and effects both parents but effective communication, empathy and education can go a long way.
Useful resources
We have a host of blogs around employee support and well-being.
Our experts have put together a free maternity guide here.
