UK Employers Offer Support Following Miscarriages

​Laws in the United Kingdom offer little direct relief for women seeking time to recover and grieve after a miscarriage, but several major employers have started to craft their own supportive policies.

No U.K. statute specifically addresses women who have had a miscarriage, generally defined in that country as loss of a fetus or embryo during the first 24 weeks of a pregnancy, according to Monica Kurnatowska, an attorney with Baker McKenzie in London. Various regulations, however, may indirectly provide some protection for women and their partners after a miscarriage if they meet relevant criteria, she said.

"Miscarriages and parental bereavement can have physical consequences for the woman experiencing them and psychological consequences for both her and her partner," Kurnatowska noted. "Scientists from Tommy's National Centre for Miscarriage Research found that miscarriage almost quadrupled the risk of suicide, doubled the risk of depression and similarly raised the risk of anxiety for both parents. 

"Miscarriage is also associated with a higher risk of longer-term health problems for women," she added. "Therefore, time off from work is important for both physical and mental recovery."

Benefits Entitlements and Other Relief

A loss that occurs at 24 weeks or later in the pregnancy is considered a stillbirth in the U.K. According to Kurnatowska, employees experiencing this type of late-pregnancy loss may be entitled to various benefits, including maternity leave and pay; two weeks of statutory parental bereavement leave; and, depending on the parents' employment status and earnings, statutory bereavement pay.

While those benefits don't apply to employees who have had a miscarriage, other relief may be available.

Women who need to take sick leave after a miscarriage may qualify for statutory sick leave and pay, plus any contractual sick pay an employer may provide, she said. The law protects women from discrimination because of a pregnancy-related illness during the protected period—in the case of a miscarriage, from the beginning of the pregnancy until two weeks after the end of the pregnancy. However, the Equality and Human Rights Commission Code states that any sickness absence associated with a miscarriage should be treated in the same way as a pregnancy-related sickness absence.

"Employers must not take into account any pregnancy-related absences during the protected period for the purposes of promotion decisions, assessments of benefits, attendance management/records or deciding whether to dismiss an employee," Kurnatowska said. If a woman requires sick leave after the miscarriage, "this should be recorded as pregnancy-related sickness. If she succeeds in a claim for pregnancy discrimination, a tribunal will usually award compensation for loss of earnings and benefits, which is uncapped," including a sum for injury to feelings.

Further, any dismissal or redundancy selection will be considered automatically unfair if the employee's pregnancy or miscarriage played a role in the decision, according to Kurnatowska. "Unlike ordinary unfair dismissal claims, the woman does not need to have two years' qualifying service to claim her dismissal is automatically unfair for reasons connected with the pregnancy," she said.

The Employment Rights Act of 1996 may entitle an employee to unpaid leave if the loss through miscarriage or stillbirth qualifies as the death of a dependent, according to Kurnatowska. The same law might also come into play if the parent experiencing the loss is the employee's dependent and needs emergency care, she said.

It's also feasible that grief following a miscarriage could develop into a long-term condition that would qualify as a disability, in which case the Equality Act 2010 prohibition against disability discrimination in the workplace could protect the employee, Kurnatowska said.

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Employers Step Up

While there's currently no significant pending legislation addressing leave after a miscarriage, several employers are starting to address the regulatory gap by introducing their own policies, Kurnatowska noted.

For example:

• One U.K. television network's policy offers at least two weeks' fully paid leave covering either partner for miscarriage and other pregnancy or neonatal loss.
  
• A bank offers 10 days' paid leave to either partner after miscarriage or other pregnancy loss, and a media company provides at least that long to mothers and their partners.
• A major advertising firm's miscarriage policy allows the mother to take two weeks' leave with pay and her partner to take one week.
• A large London law firm recently announced it will offer mothers and partners 10 days' paid leave following miscarriage and other pregnancy loss.

Kurnatowska recommended that employers consider providing training on how to recognize the signs of an employee experiencing loss, what to say or not say, acknowledging the employee's grief, and ensuring the employee receives proper support. She also said they should offer reassurance that employees won't be placed at a disadvantage and will be given the choice to explore flexible options for returning to work. Employers might also point employees to employee assistance programs and external resources.

"Employer initiatives will help only a small proportion of the 150,000 working women who have a miscarriage each year," according to Ros Bragg, director of Maternity Action, a U.K. maternity rights organization. "To benefit the wider group of women, we urgently need clear guidance for employers on their obligations toward women who have had a miscarriage."

Rebecca Emery, an attorney with Ogletree Deakins in London, expects the U.K. government to eventually put in place a miscarriage leave law, as New Zealand did this year when it instituted a paid-leave policy.

In the meantime, she said, it makes sense for employers to "look after the health and well-being of their employees" by making sure they take adequate time off after a miscarriage.

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.