This year’s theme of “Breaking the Silence” focuses on talking about pregnancy and baby loss to ensure support for affected families. But talking about such sensitive and personal matters in the workplace isn’t always easy. This week is a good prompt for employers to consider how they can support their staff during such a life changing event. 

What is baby loss?

Baby loss is a term that covers a wide range of situations resulting in loss during pregnancy, birth or after a baby has been born. One of the leading charities, Tommy’s, say that 1 in 2 people are affected by pregnancy or baby loss each year. We discuss some of the key terms and legal protections below. 

What protection does the law provide?

An employee’s legal rights broadly depends on at what stage a loss occurs:

• Before 24 weeks of pregnancy

  A loss before 24 weeks could be as a result of, for example, a miscarriage, termination for medical reasons, ectopic pregnancy or molar pregnancy. Employers do not need to be experts in all of these conditions but should be considerate that every employee’s journey will be different.
  
  There is currently no UK legislation specifically focused on a loss before 24 weeks. The only specific right is that an employee’s priority status for redeployment opportunities in a redundancy situation would continue for two weeks after the end of the pregnancy.
  
  However, there are other rights that could be used.  Employees who have suffered an early pregnancy loss may take a period of sickness absence. Both mothers and their partners would be entitled to the normal sick pay entitlements. Alternatively, employees might take some form of compassionate leave (paid or unpaid) if this is offered by their employer.
  
  Partners could also use their right to take time off for dependents, in order to care for the mother. This is unpaid and there is no set duration - simply a right to “reasonable” time off.  

• After 24 weeks or pregnancy or after birth

  Still birth is a term used for the loss of a baby after 24 weeks of pregnancy. If a baby is stillborn, or the child dies shortly after birth, employees may still be entitled to maternity leave (and pay) or paternity leave (and pay).
  
  They will also be entitled to parental bereavement leave and pay – up to two weeks of paid leave following the death of a child under the age of 18.

Are changes on the horizon?

The Employment Rights Bill introduces some bolstered family leave protections, particularly for parents who have had a loss after 24 weeks of pregnancy.  The Employment Rights Bill makes paternity and parental leave a day one right. This may benefit employees who experience a stillbirth or neonatal loss shortly after starting employment. The Bill also introduces a right to at least one week of bereavement leave, but this would not apply to somebody who has experienced an early pregnancy loss.  These changes will not come into force until Autumn 2026 at the earliest.

There is no indication that specific protections for employees who suffer a miscarriage or other early pregnancy loss will be introduced in the UK any time soon. Whilst there is a growing recognition for the need for bereavement leave, which the Bill recognises, this wouldn’t apply to early pregnancy loss.

Many jurisdictions have had national legislation that covers miscarriage in place for years. For example, in 2021, New Zealand introduced a right for parents to have 3 days’ paid leave after a miscarriage. Other countries are even more generous - in India, anyone who suffers a miscarriage is entitled to up to six weeks of fully paid leave and the Philippines provide 60 days leave.  However, previous attempts to introduce similar laws in the UK have stalled. In 2022 Angela Crawley introduced a private members bill in Parliament which would provide for 3 days of statutory paid leave in the case of miscarriage – to include molar or ectopic pregnancies. However, this was not progressed.

In Northern Ireland, the parental bereavement provisions are due to be extended to include the loss of a child through miscarriage.  This change would give these rights to working parents from day one of their employment.  There is no word yet on the exact date of when this will come into force, however the deadline for implementation is 2026.

What can employers do?

Employers have increasingly been taking the initiative to offer support above and beyond what is strictly required. Employers who genuinely support their employees through such traumatic events are more likely to foster loyalty and promote diversity within their business.  Showing compassion and security in such difficult times will build a culture of trust and inclusivity which can directly affect employee relations and retention.

There are a number of steps employers could take in Baby Loss Awareness Week and beyond to support their staff:

• Create an open and supportive culture: As with many DEI strands, your culture will play a pivotal role in supporting your workforce, allowing employees to bring their whole selves to work.
  
  Employees aren’t legally obligated to inform their employer of pregnancy until they are around 25 weeks.  This means that there is a high chance that a miscarriage might occur without the employer even knowing that the employee was pregnant in the first place. Employees might be more ready to open up about a pregnancy (or a loss) if they can see that there are HR policies in place to protect them and the news will be welcomed.
  
  
• Pregnancy and baby loss policy: Miscarriage and baby-loss policies are becoming more and more common.  Examples that we have seen offer additional leave and pay to help the employee to recover emotionally and physically, as well as to attend medical appointments. It may also outline what support is available to those employees who suffer a miscarriage at work and need immediate but sensitive help in the workplace. We discuss the possible support in more detail below.
  
  Even if your business does not introduce a policy, the CIPD recommends developing an organisational framework to support employees experiencing baby loss.
  
  
• Manage absence: You should handle any leave requests compassionately. The need for leave, and when the leave will be most helpful, will be driven by each individual. Be flexible with any leave requests and be clear whether any time off will be paid or not. We would recommend considering providing time off for medical appointments related to the loss, such as scans or monitoring, and time off for counselling appointments.
  
  It is also worth considering how such leave is recorded on employee records so it does not affect the affected individuals detrimentally, for example at an annual review of attendance or performance review.  Helpful steps can include carefully managing the return of an individual, putting in place an agreed work plan and offering a phased return or signposting the right to make a flexible working request.  
  
  
• Don’t forget the partners! Although the birthing parent will often have a physical experience to heal from, both parents may feel an emotional trauma.  Ensure any benefits and support are available to all parents, regardless of gender or how they have got pregnant. This will help avoid any arguments of discrimination, as well as ensuring all employees are supported.
   
• Raise awareness: Many employers use Baby Loss Awareness Week to generally raise awareness and promote discussion. With this year’s theme of “Breaking Silence”, employers may consider how to encourage open discussions about pregnancy and baby loss on an ongoing basis. Recent years have seen buildings lit up in pink and blue. This could include setting up employee support groups or forums. 
  
  
• External support: Employees should be reminded of appropriate support, such as employee outreach assistance or counselling. There may also be specific cover that can be added to private health care that would be beneficial. Other external support, such as that provided by Tommy's, Sands and ARC should also be passed on to employees if needed.