What employers need to know about pregnancy loss and George’s Law.
It is a heartbreaking reality that approximately one in four pregnancies will result in a miscarriage. A miscarriage is a pregnancy loss that occurs in the first 24 weeks of a pregnancy, and it is not always clear why it happens. Pregnancy loss after 24 weeks, is considered a stillbirth.
Despite the rate of occurrence, miscarriages and pregnancy loss are subjects that a lot of people are uncomfortable discussing, especially in the workplace. There are many reasons for this, but whether it can be attributed to a lack of knowledge or being a sensitive topic to discuss, a lack of support from employers can negatively impact an employee’s mental and physical wellbeing. The way an employer approaches this topic and provides support sends a powerful message about how they value their employees and their health.
There is currently a lack of protection for employees when experiencing pregnancy loss during the first 24 weeks of a pregnancy, with it being an employer’s decision as to what they wish to offer their employees in terms of support and time off.
Keeley Lengthorn, Partner in our Family team, has been campaigning and fighting for the law to change by asking employers and the Government to enact George’s Law to support people in the workplace when they have a miscarriage.
Keeley and Catherine Hawkes, a Senior Associate in our Employment team discuss the importance of implementing George’s Law into company HR policies and consider what employers should be doing to further support their workforce.
How much leave is an employee entitled to after experiencing pregnancy loss in the first 24 weeks?
There is currently no specific law that entitles people to paid leave when they have a pregnancy loss in the first 24 weeks.
Employees are not entitled to maternity or paternity leave, nor are they entitled to paternal bereavement leave. Employees who suffer a miscarriage in this period and require time off work will be expected to take annual leave, sick leave or unpaid time off for the period of time they need to recover unless their employer has their own baby loss or pregnancy loss policy in place.
Any sickness absence that is taken in relation to a miscarriage is likely to be considered a ‘pregnancy-related illness’. Under the Equality Act 2010, pregnancy and maternity is a protected characteristic and therefore if an employee is put at a disadvantage or treated less favourably because of the related time off, this could be considered pregnancy discrimination.
Is an employee entitled to any protection after suffering a miscarriage?
Yes, pregnant employees have enhanced protection in a redundancy situation specifically.
Under the Employment Rights Act 1996, the redundancy protection provides that a qualifying employee has the right to be offered a suitable alternative vacancy where one is available. Anyone who is entitled to this protection has priority over other employees to be offered the alternative role even if other employees are also suitable.
As of the 6 April 2024, redundancy protection extends from the point a woman announces her pregnancy until 18 months after the child’s birth. This change also applies to those on adoption leave and shared parental leave. Before this redundancy protections were only available to those on maternity leave.
There are also specific protections for employees who suffer a miscarriage. For miscarriages before 24 weeks, the redundancy protected period starts from the notification of pregnancy until two weeks post pregnancy. Miscarriages after 24 weeks are treated as maternity leave, with the same protections, that is 18 months after the child’s birth.
What is George’s Law?
George’s Law would offer three days paid leave following a miscarriage occurring under 24 weeks gestation, to which as stated above there is currently no legislative protection.
George’s Law was founded by Keeley Lengthorn, a partner at RWK Goodman and a national baby loss campaigner after she suffered three miscarriages in three years, the most recent of which being her son George on 3 March 2022. After Keeley had her second loss, an ectopic pregnancy in 2021, Keeley looked to the law in New Zealand, which at the time, their then New Zealand President had implemented three days leave for either parent in the event of a loss occurring under 24 weeks. Keeley then implemented this into a baby loss policy and thereafter presented the same to parliament shortly after George’s untimely death, in the form of the Miscarriage Leave Bill.
This Bill has been stalled in parliament and as such Keeley is now calling on our Labour Government with the help of Carolyn Harris MP to amend the Parental and Bereavement Act of 2018 to grant parents this much needed protection.
What is the importance of implementing George’s Law?
George’s Law is needed so the stigma associated with baby loss can be characterised and parents are not having to use their sick leave or annual leave when they give birth to a baby.
Keeley Lengthorn shared her experience:
“I had a 12-hour labour with George (including a six-hour placental deliver) and the law in its current stance says I should be returning to work at 9am the day after leaving my son at the mortuary, and that I should not be paid for the day I give birth to him. This is NOT sick leave”.
George’s Law will ensure statutory protection and support in the workplace. We speak about wellbeing all the time and this comes to the heart of this. Family is everything and this must be prioritised in the same way employees’ mental health must be prioritised; enacting George’s Law goes one way to better maternal bereavement care in the workplace.
This support will also do wonders for business retention rates. If an employee is supported in the workplace, they will stay loyal to that workplace.
Do any companies have policies on pregnancy loss?
According to a 2022 CIPD report over a third of companies have a policy in place concerning pregnancy loss with the majority of these companies having it incorporated as part of a wider policy on maternity, paternity and shared parental leave. The report considers this to be an insensitive place to have information concerning support for employees suffering pregnancy loss.
The report also found that only 21% of companies are offering paid leave for pregnancy loss before 24 weeks for the mother, and significantly less for their partners. While steps have been taken by employers to support their employees, there is still more to be done to factor pregnancy loss into a company’s policies and benefits.
Several large employers have been championing the way forward. Earlier this year, the NHS implemented a policy of 10 days additional paid leave for women who experience a miscarriage in the first 24 weeks of pregnancy and their partners will be offered up to five days, which is encouraging as the UK’s largest employer with a workforce of 1.7 million. If the NHS can do this so can every other business in the UK. John Lewis, Tesco and Aldi have now also followed suit.
At RWK Goodman we offer two weeks paid leave for employees who experience a loss in the first 24 weeks of a pregnancy. Providing this time off offers security and support to employees by acknowledging the loss of a baby as well as time for parents to grieve without the worry of returning to work.
What workplace training is available on pregnancy loss?
We encourage all workplaces (specifically line managers) to undertake training on pregnancy loss. It is such a sensitive topic and therefore, it can be difficult to know what to do and what the right thing to say is. Acknowledging the loss of a child can be a crucial gesture for grieving parents and doing so can provide them the opportunity to explain what they need from colleagues and managers.
Keeley has partnered with Briefed to create a free pregnancy loss training programme which focuses on practical guidance on how to support a colleague who has suffered pregnancy loss and how to promote an empathetic culture.
Should your company adopt a pregnancy loss policy?
Some employers have a pregnancy loss policy in place. The policy can include information about time off after a miscarriage, or ectopic pregnancy. The policy can outline any pregnancy related leave, pregnancy related sick pay and will assist both the company and its employees in providing clarity around what the rules are to prevent any unfair treatment arising in relation to pregnancy loss.
Having a formal policy in place can be integral for workplace wellbeing and can be a sign of the support available throughout a pregnancy. They can also be used by the employees to understand what the company’s process are without having to have difficult or unwanted conversations.
What can a company do to support employees who suffer pregnancy loss?
It is important for employers, HR teams and line managers to be informed of what pregnancy loss is and have an understanding of the support they can provide to employees and team members.
Having a degree of empathy and knowing that no matter at what stage a miscarriage occurs it is a loss of a baby, and it is important to acknowledge this and be able to express sympathies. We have discussed already the importance of implementing a policy that covers baby loss and the specific training available but there is additional support employers could consider such as the need to make reasonable adjustments. Employees who have a pregnancy loss may require more flexibility and certain adjustments to be made in the days, weeks and months that follow their loss to support their return to work. For example, reducing workloads or duties, allowing a phased return to work or a period of home working may be beneficial for some employees who don’t feel they could cope with colleague interactions or a busy office.
Where possible companies should also consider the benefit and importance of offering employee assistance programmes and counselling options as a means of support.
Another thing that could be considered is appointing a Fertility officer. This is a person nominated within the business to whom an employee can contact without the fear of going to HR. It may be that an employee does not want to be pregnant, or is undertaking fertility treatment, or has had a loss.
The fertility officer can be contacted (out of hours) as a point of contact and can work closely with the employee and HR to make the employee’s journey as seamless as possible. It may mean putting “keep free” in a person’s diary for an appointment for instance. This person will also be the point of contact in the event of a loss. The last thing on an employee’s mind when they have a loss will be to scrabble around the company intranet looking for the baby loss policy, it’s much easier to send a WhatsApp or make a call to the fertility officer.
If your company needs help creating a pregnancy loss policy, or other policies relating to fertility and parental leave, RWK Goodman’s employment team would be happy to assist and advise further.
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