Wellbeing | What to do if your employee has a miscarriage, but doesn't meet the support criteria?

What to do if your employee has a miscarriage, but doesn't meet the support criteria?

Written by the Employment Law team at Moorepay

There are a lot of positive changes happening now with family friendly rights in employment law, which is positive news for parents or expectant parents who meet certain eligibility criteria. But how do you support employee miscarriage when they don’t meet the current legislative criteria for support?

Please note that throughout the article the term ‘miscarriage’ will include miscarriage, ectopic or molar pregnancy. If a baby is stillborn (which is a loss after 24 weeks of gestation) the law and employee’s rights are very different.

Who isn’t legible for SMP currently?

If a miscarriage happens in the first 24 weeks of pregnancy, sadly there is no entitlement to statutory maternity, paternity, or parental bereavement leave. However, if you experience pregnancy loss, it can be a devastating, lonely, and traumatic experience for both parents, regardless of how early in pregnancy the loss occurs. It’s more common than people may think and the challenges at work are often misunderstood.

If a miscarriage happens in the first 24 weeks of pregnancy, any sickness absence the birth mother needs to take (whether it’s physical or due to mental health reasons) is likely to be considered a ‘pregnancy-related illness’. Pregnancy and maternity are a protected under the Equality Act 2010 (the Act) and if an employee is put at a disadvantage and treated less favourably because of a pregnancy-related illness, this could be discrimination.

The Act also has a protected period for people who do not have a right to statutory maternity leave and this lasts for 2 weeks after the pregnancy ends. So, any sickness absence during the protected period should be recorded separately from other sickness absence and must not be counted towards any review or trigger points in your absence tracking.

It would be best practice to record all absence linked to the miscarriage separately including those beyond the protected period. Partners are not legally entitled to pregnancy-related sickness absence, this doesn’t mean they are not equally affected by the loss, you might offer compassionate or bereavement leave in this instance.

What can employers do?

An organisation should create a supportive environment. Don’t assume to know what your employee is going through and how much leave they might need as everyone’s situation is different, so it is important to encourage your staff to communicate with you to better understand how you can offer support.

You may want to introduce a Miscarriage Policy which in which you can include details of any Employee Assistance Programmes, private medical insurance, and any paid/unpaid leave you offer outside of other leave policies. It may also sign post to other organisations/charities which can provide further support.

While the employee is off, stay in touch with them but try not to add pressure to return to work before they are ready. Ask them what they would like their colleagues to know (if anything at all) and whether there is anything you can do to make things easier for them e.g. waiving the requirement to call in everyday of their absence. Share information with them such as EAP details, or your Miscarriage Policy etc. Finally, it’s kind to send a gesture such as flowers, a care package, or a card from the company to let the employee know they are in your thoughts.

Returning to work after a miscarriage

When supporting an employee’s return to work employers should consider what’s best for their employee based on their specific circumstances. Returning to work can be overwhelming and they may feel anxious about what colleagues say, feel embarrassed or even shameful.

You may arrange to meet before their return to work to discuss any adjustments they may need and check whether they feel totally ready to return and if not, a phased return might help. If appropriate, inform colleagues ahead of their return and provide information on how best to support their colleague.

Think about the nature of the work too. For example, do they work with babies or children, or in bereavement; do they work with others in the same stage of pregnancy as they would have been, do they do long shifts alone? You may need to discuss this with your employee and adjust if anything may be triggering.

Finally, you may want to make some allowances for performance over the first few months back at work, knowing their personal struggle may affect their work in some way.

In summary, remember there is no ‘one size fits all’ approach to supporting employees after they or their partner has a miscarriage. It affects everyone differently, and everyone handles it in a different way. Effective communication, empathy and education is essential in order to support your employee in the way that suits them to help them on the road to healing.

Useful resources

Read more blogs around employee support and well-being here.

In addition, our experts have put together a free maternity guide here where you can learn more about employee rights when it comes to pregnancy, parental leave, and returning to work after having a child.

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