Supporting workers experiencing pregnancy loss – proposals for change

We look at the government’s proposals to introduce paid leave for parents experiencing the loss of a pregnancy and steps employers can take to support their workers dealing with this difficult issue.

An estimated one in five pregnancies ends in miscarriage, which is the loss of a pregnancy during the first 23 weeks, but paid bereavement leave is only available to grieving parents in the case of stillbirth after 24 weeks. Experiencing a miscarriage not only takes a devastating toll physically and emotionally but can also have a long-term psychological impact.

Most miscarriages occur in the first 12 weeks of pregnancy. Expectant parents will often not have told their employer or colleagues that they are expecting a baby within this time. This makes the experience even more isolating in the workplace.

What legal entitlements do employees currently have?

Workers are only entitled to two weeks of paid bereavement leave for the loss of a child after 24 weeks of pregnancy. Since a miscarriage within the first 24 weeks is not classified as ‘childbirth’, the parents have no statutory rights to maternity, paternity or parental bereavement leave.

Some employers might have a policy that says employees can take a period of paid leave in the case of pregnancy loss. However, many employees who have lost a baby through miscarriage, ectopic pregnancy or molar pregnancy before 24 weeks of pregnancy may have to take sick leave or even annual leave or unpaid leave if they feel unable to return to work after their loss.

What is being proposed?

The Miscarriage Leave Bill is a Private Members’ Bill that is currently going through Parliament. If it becomes law, the Bill will create a statutory right to three days of paid leave for parents who have suffered a loss before 24 weeks of pregnancy, including ectopic and molar pregnancies.

Just as the Bill was due to receive its second reading in the House of Commons in December 2022, it was delayed until March 2023. During a House of Commons debate on the subject in March 2022, Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy, and Industrial Strategy would not commit to introducing statutory paid miscarriage leave. It remains to be seen whether the Bill will become law.

Some other countries have already introduced paid miscarriage leave. New Zealand introduced similar legislation in 2021 after a unanimous vote in parliament. This provides for three days paid bereavement leave to mothers and their partners experiencing a miscarriage, including those planning to have a child through adoption or surrogacy.

What steps can employers take?

Whilst we wait to see if the Miscarriage Leave Bill becomes law, employers could consider taking their own steps to help support workers dealing with the loss of a pregnancy.

In 2021, the Miscarriage Association launched a campaign asking employers to sign up to a Pregnancy Loss Pledge. By signing the pledge, employers agree to implement a pregnancy loss policy and create a supportive and understanding environment for employees and their partners experiencing pregnancy loss, including offering time off work.

An October 2022 CIPD report on Workplace Support for Employees Experiencing Pregnancy and Baby Loss highlighted the lack of workplace support for employees experiencing pregnancy loss. Of the surveyed employees who did not feel supported in the workplace following a pregnancy loss, 72% said that employer support would have been beneficial. The report outlines five good practice principles for workplace support:

1. Raising awareness across the organisation about the need for pregnancy or baby loss to be recognised as an important workplace wellbeing issue
2. Creating an open, inclusive and supportive culture – including by communicating positive messages about the support available and ensuring that line managers show empathy and understanding in how they manage people who have experienced such loss
3. Developing an organisational framework to support employees experiencing pregnancy or baby loss - including specific policy provision, line manager guidance and education as well as access to sources of expert help, such as an employee assistance programme and mental health first aiders, and signposting to external specialist charities (such as the Miscarriage Association, Tommy’s and the Fertility Network UK)
4. Managing absence and leave with compassion and flexibility – consider whether to offer paid leave and ensure absence management policies and procedures are flexible and take into account the potentially far-reaching impacts of experiencing this kind of loss for both partners
5. Equipping line managers to support people with empathy and understanding.

Employers could consider implementing a pregnancy loss policy. Some large employers such as Channel 4, John Lewis, Kellogg’s and Monzo have already taken this approach, with some going further than the proposed legislation by offering two weeks’ paid leave to employees following a miscarriage. Employers could also consider including miscarriage in any existing bereavement policies.

CIPD reports that fewer than one in ten organisations (9%) say they have a standalone policy on pregnancy loss and miscarriage. Although, around a quarter (27%) say it is part of a wider policy. Having a policy in place sends a clear message to employees that there is support available. It also helps to reduce the stigma surrounding miscarriage and encourage employees to seek support from their employer where they wish to.

Having a policy can also help protect employers from potential discrimination claims. Pregnancy and maternity are protected characteristics under the Equality Act 2010. Employees who are treated less favourably because of a pregnancy-related illness may be found to have been discriminated against by their employer. For example, if an employee takes sick leave following a miscarriage which is then counted for the purpose of a salary review or redundancy selection, this may amount to indirect discrimination.

If your organisation is considering introducing a pregnancy loss policy, our team has experience of advising clients on drafting and implementing pregnancy loss and other related policies. In addition, we can provide training on workplace culture, discrimination and unconscious bias.