If Pregnancy Doesn't Go To Plan

Pregnancy is a joyous and exciting time for many expectant parents, however it is a sad fact that it does not always run smoothly. The NHS website estimates that one in six pregnancies ends with miscarriage and around one in 200 births end with a still birth.

Bearing these statistics in mind, as an employer, it is a tragic yet realistic possibility that you will be faced with a situation where the pregnancy of one of your employees does not progress to the happy conclusion that was expected. Accordingly, it is useful to understand what the employee's rights are in such a situation.

First and foremost, you should be sympathetic to an employee who has lost their baby and, in these distressing circumstances you should try and give as much help and support as possible.

A pregnant employee is normally free to start her maternity leave at any time from the 11th week before her expected due date up to the actual date of the birth however, in some circumstances maternity leave will start early:-

  • If the mother is sick for a pregnancy related reason in the four weeks before the week in which her baby is due, her maternity leave will start automatically on the first day of absence;
  • If the baby is born early, it will automatically begin the day after the birth.

If a still birth occurs after 24 weeks' of pregnancy, the employee will be entitled to maternity leave as if the pregnancy had progressed to a happier conclusion. The employee will be entitled to a period of 52 weeks' maternity leave, regardless of her length of service with you. Maternity leave will start the day after the stillbirth. She will have all of the same rights in respect of Statutory Maternity Pay, protection against discrimination and the right to return to work as she would have had, had her pregnancy ended as hoped.

Furthermore, should you have an employee who is eligible to take Paternity Leave, that employee will also be deemed to have met the requirement of 'responsibility for the child', so will be entitled to take their period of Statutory Paternity Leave and, should eligibility conditions be met, they will also be entitled to Paternity Pay.

In the event of neonatal death (that is the baby is born alive at any point in the pregnancy but died within 28 days of the birth), the mother will be entitled to maternity leave and subject to meeting the eligibility conditions for SMP. Again if maternity leave had not started, it will start the day after the birth.

There are no similar provisions if the mother suffers a miscarriage before the end of the 24th week of pregnancy. In this situation, maternity/paternity leave is not available. Such circumstances will undoubtedly be extremely distressing for your employee so you may wish to consider how you can assist. This could include, for example, allowing a period of unpaid leave, allowing the employee to use annual leave, permitting a period of paid or unpaid compassionate leave.

If your employee is too sick to return to work following a miscarriage then she may take sick leave and receive sick pay in the usual way. If the sick leave is pregnancy related then you must count this separately and not use such leave against the employee when considering, for example, disciplinary or redundancy purposes.

If you are an employer who is facing these difficult circumstances or, if you have been through any of the above situations without the correct legal support or entitlement, please contact Fosters on 01603 620508 or via our email contact form and a member of our employment law team will be in contact very soon.