Government set to extend the right to bereavement leave for miscarriages under 24 weeks

What is the difference between a ‘miscarriage’ and a ‘stillbirth’ under employment law?

According to the NHS, a stillbirth is when a baby is born dead after 24 completed weeks of pregnancy. It happens in around 1 in every 250 births in England. If the baby dies before 24 completed weeks, it's known as a miscarriage or late foetal loss.

This holds true for the purposes of your rights under the law as well. If a baby is stillborn before the 24th week of pregnancy, it is called a miscarriage. If a baby is stillborn after the beginning of the 24th week of pregnancy it is called a stillbirth.

Can you take compassionate leave for miscarriage?

Compassionate leave for miscarriages, sometimes referred to as bereavement leave, varies from employer to employer as there no statutory obligation for employers in relation to miscarriage.

Currently, if a miscarriage happens in the first 24 weeks of pregnancy, there's no automatic entitlement to statutory maternity, paternity or parental bereavement leave. This means that any absence the birth mother needs to take is likely to be considered a 'pregnancy-related illness'.

However, many people would still consider miscarriage a bereavement. An employer should still consider offering time off at what can be an extremely difficult time, both physically and emotionally. They may ask you to provide a fit note from the GP or hospital, before offering any period of leave.

For stillbirths after 24 weeks, or cases where the baby sadly dies after birth, all legal rights associated with pregnancy are protected. This includes the right to maternity or paternity leave. Leave would start the day after the birth, if it had not already started, though you can choose to return to work if you wish. You will usually need to give eight weeks’ notice before you return, though your employer may agree to reduce this.

An example provided by ACAS is 'if an employee is a father and their child dies at 3 days old, they are likely to have already started their 2 weeks' paternity leave. They are entitled to finish their 2 weeks' paternity leave and then take 2 weeks' statutory parental bereavement leave’.

Both parents, so long as you are employees, will also be entitled to statutory parental leave. There is no minimum length of service, and it entitles you to one week, two continuous weeks, or two separate weeks. It can also be used anytime in the first 56 weeks after the death or stillbirth.

How could the bereavement leave entitlement for miscarriage change?

Labour MP Sarah Owen, who chairs the Women and Equalities Committee, has been calling for the current rights for stillbirth bereavement to be extended in cases where miscarriages take place before 24 weeks.

Since April 2020, employees have been eligible for statutory parental bereavement leave and pay where there has been a stillbirth after 24 weeks of pregnancy, but there has been no specific leave for a pre-24-week loss in the form of miscarriage. This means that bereaved parents in this capacity, entirely rely on employer discretion for compassionate leave for their miscarriage.

The government intends to amend the Employment Rights Bill to include bereavement leave for parents experiencing pregnancy loss before 24 weeks.

Why is bereavement leave for miscarriage changing?

The potential changes being introduced to time off work for miscarriage will offer greater support to parents who experience the loss of their baby prior to 24 weeks. The changes will solidify parental bereavement leave entitlements and give them a legal platform to stand on should these needs not be met. Parents would then be able to make a discrimination claim under employment law.

What should I do if I need bereavement leave for miscarriage?

As difficult as it may be to discuss, you should notify your employer. This could mean discussing it with HR or talking to your line manager if that is how you feel more comfortable. Your particular needs may vary from needing time off, reasonable adjustments or continuing working but making your employer aware so they are on hand to support you.

It is important to note that if you do not require time off when you have a miscarriage, it is not a requirement to tell you employer, but it is highly recommended. Knowing that your manager is aware of your situation, and you are in regular communication, whether you remain in work or take time off work for your miscarriage, can help lower anxiety levels. It means you have an open line of communication to ask about company policy (if you cannot find it on your intranet) and you can potentially plan a return to work.

We are here to help

'Pregnancy and maternity' is a protected characteristic under the Equality Act 2010. If an employee is put at a disadvantage and treated unfavourably because of a pregnancy-related illness or related time off this could be discrimination.

If you feel your employer is treating you unfairly or is not willing to offer you the parental bereavement leave, you are entitled to, then it is important to speak to an employment lawyer to discover what your next steps are to ensure you have access to your rights.

Our experts know that the loss of a child is extremely difficult, both physically and emotionally, and we are on your side to ensure that your employer is treating you fairly and granting your rights to time off work to grieve your loss. If you feel you have been discriminated against or that your rights are being ignored, contact us today on 0330 041 5869 or online here.