Baby Loss in the Workplace
Baby Loss Awareness Week this year runs from Sunday 9th to Saturday 15th October. Last Autumn, as part of our series of lunchtime webinars around Equality in the Workplace we included a webinar on Baby Loss. Click Here to Watch This is too large a topic to cover fully in a short article, but now is an apt time to provide an update on developments in this area.
Background
Baby loss is not currently legally defined but is used to refer to Miscarriage (spontaneous loss of a baby any time up to 23 weeks and 6 days of pregnancy (i.e. before 24 weeks) including ectopic and molar pregnancies, Still birth (loss of a baby from 24 weeks, while in the womb or during labour or birth) and Neonatal loss (loss of a live-born baby up to 28 days after the birth). Baby loss also includes Embryo loss (where an embryo transfer during fertility treatment does not result in pregnancy) and Abortion (including for medical purposes).
To give an idea of the scale of baby loss in the UK, approximately 1 in 4 recognised pregnancies end in miscarriage, around 1 in 250 pregnancies result in still birth and 75% of IVF treatments are unsuccessful (and many unsuccessful IVF outcomes are labelled “unexplained”).
Currently in the UK, rights to time off for employees affected by baby loss depend on whether the loss is before or after 24 weeks of pregnancy. Prior to 24 weeks, there is no right to time off specifically due to baby loss, and employees who are physically, mentally or emotionally unable to return to work after suffering such loss would need to rely on sickness absence, annual leave or the generosity and understanding of their employer.
"To give an idea of the scale of baby loss in the UK, approximately 1 in 4 recognised pregnancies end in miscarriage, around 1 in 250 pregnancies result in still birth and 75% of IVF treatments are unsuccessful (and many unsuccessful IVF outcomes are labelled “unexplained”).
Baby loss after 24 weeks of pregnancy triggers maternity leave, paternity leave and up to 2 weeks of parental bereavement leave. Payment in all cases will depend on meeting the usual eligibility criteria. There is also an entitlement (both before and after 24 weeks of pregnancy) to reasonable unpaid time off to support a dependant who is unwell. In short, given the statistics mentioned above, unless the employer is particularly progressive and generous, it’s likely that many employees who suffer baby loss will have very limited statutory rights to time off, whether paid or unpaid.
Latest developments
• In March 2021 New Zealand introduced 3 days’ paid bereavement leave for miscarriage at any stage, or stillbirth, for mothers and partners (including those hoping to welcome a child through adoption or surrogacy).
• In May 2021 the Irish Government backed proposed legislation to introduce up to 20 days’ paid leave for women who experience early miscarriage. The Organisation of Working Time (Reproductive Health Related Leave) Bill which would bring in this change is still working its way through the Irish Legislature and may become law before the end of 2022.
• Following the introduction of the new law in New Zealand, Angela Crawley MP determined to promote the conversation about similar rights in the UK and, in June 2021, the Miscarriage Leave Bill was put forward as a Private Members’ Bill seeking to entitle all affected parents to at least 3 days’ paid miscarriage leave. The Bill was due to be discussed in Parliament in full on 3 December 2021. It was then postponed to 18 March 2022 and then to 6 May 2022 and then to 16 September 2022, but was postponed again following the passing of the Queen. The Bill has metamorphosed into a Ten Minute Rule Bill and is now due to be presented in Parliament on 2 December 2022.
• In September 2021, Australia’s federal parliament amended the Fair Work Act to introduce 2 days’ paid bereavement leave for miscarriage in the first 20 weeks’ of pregnancy, for women and their partners.
• Although the New Zealand law seems to have precipitated similar moves in several European countries, India was actually he first country to pass legislation for miscarriage leave. Indian law stipulates that women are entitled to six weeks’ leave if they miscarry a baby, but so many women employees in India are working informally that very few access this right.
• In the debates around these legislative developments it has been widely recognised that grief for lost babies is not a sickness - it is bereavement - and therefore leave other than sickness leave is required so grieving can occur without financial penalty. Furthermore, offering such leave is likely to be beneficial to employers as well as to employees. Employees who feel they need such time off are unlikely to be fully engaged and firing on all cylinders if they have to work. On the other hand, those who are treated sensitively at such a difficult time are likely to be appreciative and more motivated when they do return to work.
• We await further Parliamentary debate on this important topic with interest, but, in the meantime, the conversation is already taking place within many HR departments (often alongside discussions about paid time off for fertility treatment and more sensitive recognition of the challenges of Menopause).
• Employers who offer support above and beyond minimum statutory obligations will be all the more attractive to candidates for whom the issues raised in this article are already very real, and such employers also stand a greater chance of retaining staff affected by these matters.
If you would like to discuss how your business can develop its offering to employees affected by baby loss, please don’t hesitate to get in touch.
(With thanks to Emma Menzies of Ready Steady Coach for additional research)
For further information about the genesis and purpose behind the Miscarriage Leave Bill, including an interview with Angela Crawley MP, check out the latest “In/Fertility in the City” podcast which dropped on 10 October 2022. Click Here