The new legislation in New Zealand gives parents a right to three days’ paid leave if they suffer a miscarriage (at any time during the pregnancy) or a stillbirth. The right also applies to those welcoming a child through adoption or surrogacy. New Zealand MP Ginny Andersen, who introduced the legislation, said that one in four women in New Zealand have had a miscarriage and that she hoped the new provision would give them time to come to terms with their loss without having to tap into sick leave.
What is the UK position?
In the UK, if a baby is stillborn after 24 weeks of pregnancy, or the child dies shortly after birth, employees remain entitled to maternity leave (and pay) and paternity leave (and pay). They are also entitled to parental bereavement leave and pay, which was introduced in April 2020.
But the UK does not provide any specific statutory rights in the event that a mother suffers a miscarriage (or an ectopic pregnancy or molar pregnancy – less common types of pregnancy loss) before 24 weeks of pregnancy. In this scenario, women typically use their sick leave entitlement. Their partner may also be entitled to sick leave (due to the mental impact of the miscarriage) or unpaid time off to care for the mother (who is likely to be a dependant). Otherwise, employers may offer compassionate leave (paid or unpaid), despite there being no legal obligation on them to do so, or employees may ask to take annual leave.
This position arguably leaves a significant support gap for those experiencing miscarriage before 24 weeks of pregnancy. New Zealand is reported to be only the second country in the world (after India) to introduce a right to miscarriage leave, and it remains to be seen whether other countries follow suit. There is no current plan to extend UK law in this way, but this this development has received considerable media coverage around the globe so may have put the topic higher up the agenda for employers and their employees.
What can employers do?
While there is no official government guidance for employers on supporting employees after a miscarriage, the Miscarriage Association provides helpful information for employers.
Most employers have maternity, paternity, adoption and shared parental leave policies in place, but miscarriage policies are rare. Employers could consider implementing such a policy, which formalises existing practice within the organisation and ensures consistency of treatment. Having a policy in place may also help make miscarriage, ectopic pregnancy and molar pregnancy less taboo and may encourage people to ask for support. The policy could set out how leave is recorded; any offer of paid leave; whether this will be classed as sick leave or another type of leave; confidentiality issues and talking about miscarriage within the team or wider organisation; support on returning to work (including any phased returns); information on how managers can offer practical and emotional support; any mental health support available (for example, referring employees to an Employee Assistance Programme or counselling through the private healthcare scheme) and links to external support.
The employer will need to know about the miscarriage, of course, if it is to take steps to help and support the employee. In the UK, a woman is first invited for an antenatal scan when she is 12 weeks’ pregnant, and there is a tendency not to disclose the pregnancy until after this date. In fact, employees are not legally required to disclose their pregnancy to their employer until the 15th week before the expected week of childbirth (so at around 25 weeks’ pregnant). Therefore, it will frequently be the case that women suffer miscarriages and their employer (or their partner’s employer) is none the wiser. Employees may not choose to tell their employer for multiple reasons. For example, they may not want to talk to their manager about it, may be too upset to do so, and/or they may not want their manager to know that they’re trying for a baby. There are many possible reasons, but an employer that offers leave and pay, provides a supportive environment, and encourages employees (both mothers and their partners) to open up and talk about miscarriage, may reassure employees that they can confide in and seek support from their employer.