Infant Loss Awareness Month
The loss of a child is one of the remaining taboos between friends, family and certainly in the workplace. Early miscarriage often passes completely unbeknown to all but the closest of friends. Later miscarriage, although physically noticeable, will go unspoken. However, the pain that the parents suffer during this time is rarely acknowledged by those around them. In major part, this is because we simply don’t know what to say, and with so many situations like this, we chose to say nothing as opposed to speaking openly about the hurt. The workplace usually takes a silent vow to pretend they didn’t know rather than engage in verbal support- after all, is it our place to comment?
Arguably, yes. Rare acknowledgement let alone open communication continues to place the loss of a pregnancy or the still birth of a child in the conversations we as humans consciously decide not to have. Pregnancy and Infant Loss Awareness month and the charities that support sufferers implore us to open discourse and to support discussion around the pain so many have suffered as opposed to keeping the loss a complete secret. This month, many people have posted on their social media platforms poignant statements about infant loss. To many acquaintances, it is unknown if these statements are reflecting immediate personal loss or are in support of removing the taboo. But do we ask? Perhaps we click the ‘love’ or ‘sad’ emoji as our comment, but still, so many prefer not to ask the question, a reflection of our cultural background.
The impact of the tragic loss of a baby is significant- on both parents and not just the mother. The magnitude of the emotions associated with this most desperate situation is incomprehensible and although often silenced, the support offered by an employer during this time will be crucial to the physical and mental healing as well as the financial situation of the parents. Employee rights are bottom of the list of concerns for the individual but need to be red-flagged for the employer who can engage the practical measures, offer sensitivity and ensure their obligations are met- and surpassed where possible.
What is the law?
If a baby is born and survives only for an instant, whatever the length of the pregnancy, the birth is treated, in law, as a live birth and the relevant maternity rules will apply in relation to pay and leave.
Stillbirth
A baby lost after 24 weeks of pregnancy is termed ‘stillbirth.’ The certificate of stillbirth being issued triggers the parents’ entitlement to statutory maternity pay or maternity allowance- as long as the legal qualifying criteria are met. These criteria include: a minimum earning limit and the length of continuous employment prior to the qualifying week. These criteria apply to all pregnancies.
If statutory maternity leave has not yet begun when the baby is stillborn, or is born alive and dies, at any point after the 24th week of pregnancy, all rights are triggered, and maternity leave commences the day after the birth or loss.
The Father
Despite the loss of the baby, paternity leave- or the right to paternity leave is triggered, as long as the qualifying criteria have been achieved. Support during this sensitive time may also be offered in terms of exercising the employees right to time off to care for a dependant to provide additional time for healing and for the father to support the mother.
Miscarriage
A baby lost before 24 weeks of pregnancy is termed a miscarriage and does not trigger any entitlement to statutory maternity, paternity or shared parental leave. Therefore, technically, the employee is due back at work with immediate effect.
It would be expected, however, that the employee would be signed off work sick for a period of time to physically heal. Employers must apply normal sickness absence procedures during this time. In addition, the employer may consider allowing compassionate or unpaid leave and it is crucial that thought, empathy and understanding is provided as a given in consideration of the emotional and mental wellbeing of the employees during this time and when returning to work. Reasonable adjustments to facilitate their return should also be engaged.
The Father
Fathers are often forgotten in the situation of a miscarriage. Although paternity rights are lost in the case of a miscarriage, employers are urged to consider the emotional impact on the father. Firstly, in terms of the loss of his unborn child and also of the additional support that the father will be expected and will be wanting to provide to the mother. An employer must ensure that the father is supported as far as possible and maximise the period of absence from work. Fathers may well be entitled to statutory right to time off for a dependant- in this case the mother or other children.
Shared Parental Leave
In the sad situation of a baby being born and then dying, if shared parental leave had already been agreed following the employees giving notice that they wished to share the leave, the planned leave is still entitled. The employees are also allowed to cancel this planned leave. Legally, 8 weeks’ notice should be given, although it is expected that leniency is exercised in this situation.
If the intention was to share the leave, but this had not been given as notice before the baby dies, the right is lost.
In the situation of a stillbirth- where the baby is born dead after 24 weeks of pregnancy, regulations are unclear, but it is unlikely that shared parental leave can be taken. Instead, statutory rights to maternity and paternity leave are exercised.
What remains vital in all situations of infant loss, is that employers handle the situation sensitively and provide whatever support they are able to give. This can include offering as much financial support and time away from the business as the employee needs and the business is able to offer. Causing the employee no further stress must be at the forefront of all decisions made around this sad time.
As an employer or an employee facing this situation, for support and guidance, please contact us by telephone on 0116 212 1000, alternatively fill in our online Contact Us form and we will get in touch with you as soon as possible.
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