#BLAM2020 #BLAWXCOVID19 #BLAW #BREAKTHESILENCE
During the official month of recognition, the week of 9-15 October aims to raise awareness about pregnancy and baby death in the UK. It is an opportunity for collaboration between charities and organisations to work together for change and tangible improvements in policy, research, bereavement care and support available for anyone affected by the death of a baby at any stage.
Baby loss is still that elephant in the room. It is widely known as a silent loss, one that is rarely acknowledged by employers and colleagues in a workplace setting, let alone openly spoken about. Why? Because nobody knows what to say
Wave of light
At 7pm on Friday 15 October, International Pregnancy and Infant Loss Awareness Remembrance Day, bereaved parents, families and friends around the globe will join together to commemorate all babies who sadly died too soon by lighting a candle and leaving it burning for at least one hour. This is known universally as the #Waveoflight.
Statistics from 2018 confirm that 1 in every 250 births ends in a stillbirth in the UK. That is a staggering 8 babies every day. There were 2,131 neonatal deaths, for every 1000 babies born. The month of October is dedicated to pregnancy and infant loss and raising awareness and support for those who are affected.
Parents stand together
The impact on an individual after the tragic loss of a baby is unimaginable, and it is important to recognise the individuals involved and not just the mother; as is often the case. Very often, individuals other than the parents themselves can also be affected by such a loss, to include without saying the parent who did not birth the child and also close family and friends. The magnitude of emotion after such a loss is incomprehensible. Specifically in the workplace context, the support offered by an employer can be crucial to the healing process physically, emotionally and often financially.
Employment rights are often one of the last things on an employee’s mind after such a loss. Employers should be sensitive to the facts of the individual situation, whilst ensuring that they are aware of their legal obligations and general ongoing duty of care as an employer.
Birth after 24 weeks
If a baby is born and survives only for an instant, this is treated by the law as a “live birth” and the relevant maternity rules apply in relation to maternity leave and pay, whether these are the statutory provisions or any bespoke company policies.
Loss of baby before 24 weeks
A baby lost before the 24th week of pregnancy is termed a ‘miscarriage’. In this scenario, the law currently does not trigger any entitlement to statutory maternity, paternity or shared parental leave pay. There is no automatic set period of permitted absence from work and therefore technically an employee is required back to work with immediate effect; or after a period of self certification / medical sick note expires.
In reality, an employee is likely to be signed off work sick for a period of time to grieve and convalesce, as well as until any medical procedures have been fully carried out if necessary. Employers should be mindful of sick pay entitlements during this absence and that normal sickness absence procedures apply; although it may be advisable to exercise some leniency during such an emotionally and physically sensitive time.
Employers should be aware that an employee who needs time off sick as a result of a miscarriage is likely to be pregnancy-related sickness, a sick note will confirm the position. There is no time limit on sickness absence following a miscarriage.
Employers must count any sick leave related to pregnancy or miscarriage separately and must not use it against employees in disciplinary or redundancy procedures.
Protection in law
The Equality Act 2010, section 18, provides protection against discrimination on the grounds of pregnancy or pregnancy-related sickness for a protected period of two weeks from the end of a pregnancy for women who are not entitled to maternity leave. During this period employees are protected against discrimination, dismissal, redundancy or unfair treatment related to pregnancy, miscarriage or related sick leave. After the two week protected period employees may have a claim for direct and/or indirect sex discrimination (rather than pregnancy discrimination) under the Equality Act 2010, if they are dismissed, made redundant, disciplined or treated unfairly because of the pregnancy, miscarriage or related sick leave.
Employers should also be aware that employees may also have claims for unfair dismissal (if they have two years’ service), detrimental treatment (which can include a range of unfair treatment) or automatic unfair dismissal on the grounds of pregnancy (including a miscarriage or related sickness absence). This protection is not limited to a specific period and applies to treatment related to pregnancy or pregnancy/miscarriage-related sickness, regardless of how long the employee is off sick. There is no two year service requirement to bring claims for discrimination, automatic unfair dismissal or detrimental treatment as these are day one employment rights.
To show their support for an employee, in addition to any normal contractual or statutory sick pay entitlements, employers may consider allowing a period of time off as compassionate leave (with / without pay). Employers should have consideration for the emotional wellbeing of employees returning to work and extend this general consideration to making reasonable adjustments to facilitate their return to work if appropriate to include adjustments in the workplace or phased returns / flexible working.
Employers should also be mindful of the impact on fathers, other parent and even close family members under these sensitive circumstances and to take necessary steps to support any absences and subsequent return to work. The employee may well be entitled to statutory time off for dependants.
Loss of baby after 24 weeks
A baby lost after the 24th week of pregnancy is termed a ‘stillbirth’. Unbeknown to many employers and employees alike, a certificate of the stillbirth is issued and this triggers entitlement to statutory maternity pay (if qualifying requirements are met) or maternity allowance.
If an employee is not yet on maternity leave and their baby is stillborn, or born alive but later dies at any point after 24 weeks of the pregnancy, the right to all maternity rights is triggered and maternity leave commences the day after the birth.
Despite the loss of the baby, the right to paternity leave is also triggered as long as the usual qualifying criteria are satisfied. A father may also exercise the statutory right to time off to care for a dependant (his wife) as well during this sensitive time to maximise the period of absence from work.
Shared parental leave
The rules for shared parental leave are a bit different.
If employees have already given notice that they want to share the leave, and the baby is born but then dies, both parents are entitled to take the leave they had requested and planned. If the employee(s) want to cancel any of the leave, they can do, by giving the requisite 8 weeks’ notice. However, employers should exercise some leniency under these circumstances.
If the baby dies before notice to book Shared Parental Leave has been given, then parents lose the right to Shared Parental Leave.
In case of a stillbirth (where a baby is born dead after 24 weeks of pregnancy), the regulations are unclear. It is unlikely that Shared Parental Leave can be taken. The mother can still take maternity leave and the partner can still take paternity leave and possibly time off to care for a dependent as long as they meet the qualifying criteria.
Understanding how to deal with employees who have been through miscarriage, stillbirth or whose baby dies after birth can help employers handle a sensitive situation without causing an employee further distress.
Parental Bereavement Leave
The Parental Bereavement (Pay and Leave) Act 2018 came into force in April 2020. Eligible bereaved parents will be entitled to either or both Parental Bereavement Leave and Statutory Parental Bereavement Pay.
This is an entitlement to 2 weeks’* leave from the first day of your employment for each child who has died or was stillborn, please click here for eligibility criteria.
The leave can be taken as follows:
- 2 weeks together
- 2 separate weeks of leave
- only one week of leave
*a week is the total number of days worked in a week
- can start on or after the date of the death or stillbirth
- must finish within 56 weeks of the date of the death or stillbirth
Statutory Parental Bereavement Pay
The current rate is £151.20 a week or 90% of your average weekly earnings (whichever is lower) subject to eligibility. Employers are encouraged to be supportive and provide support above and beyond the minimum rate but the new legislation means all employed parents are now entitled to paid time off to grieve and make arrangements when their child dies.
The law should go further
Charities who campaign for support and extended rights for those who experience infant loss hope that the Bill will go further than the above by providing:
- Rights and support for self-employed parents, and equivalent support for parents who are unemployed.
- Bereaved parents to be entitled to take periods of Unpaid Parental Leave until their child would have turned 18. This could be used to support parents around the time of special anniversaries or ‘trigger’ anniversaries.
- Greater flexibility so the Leave can be taken in separate blocks, and over a longer period of time.
Whilst the changes are baby steps in the right direction, it is a long way from reaching the necessary support that employees need at this heart breaking time.
Priya Vara; mum of an angel baby founded Footprints in the Stars (The Baby Bereavement Charity in memory of her son Shayen who was born sleeping in 2017. Of her experience specifically in relation to work, she says:
“After my son Shayen was born sleeping, my initial instinct was to go back to work immediately. My employer rightfully advised that I should take at least a month to gather my thoughts on returning to work and if I felt the same way, they would kick off my back to work process. I needed this time and I actually took 8 months of my maternity leave to heal and come to terms with what had happened. Had I not taken this time, I would have not been in a good state to start work effectively. There is a huge amount of anxiety in going back to a place where you spent the majority of your pregnancy so it is so important that an employer provides hands on support to an employee returning after such an awful experience. A really useful tip from my employer was for me to send out an email to my colleagues explaining how I wanted my loss approached. People often don’t know how to act around you or know what to say, so telling them is key and can make the whole transition back to work a lot easier.”
Further advice and support is provided by Sands and Tommy’s.