Lessons for employers on supporting pregnancy loss

Channel 4 recently announced that they have implemented a pregnancy loss policy for its employees. It has made the policy available here so that other organisations can use it as a template.

In recent months, Monzo, the digital-only bank, also started offering additional paid leave to all employees who experience the loss of a pregnancy or are undergoing fertility treatment.

It is not only UK organisations which are introducing such policies. New Zealand's parliament recently voted unanimously to bring in three days of paid bereavement leave for mothers and their partners if they suffer a miscarriage or stillbirth, at any time in their pregnancy.

In this article, we look at how employers can follow the lead of Channel 4 and Monzo in supporting their employees through pregnancy loss. We have also looked at the current statutory position for employees in the UK.

The position in the UK

Since New Zealand's vote to bring in bereavement leave for miscarriages and stillbirths, there have been calls for the UK government to adopt a similar policy. Whilst the UK saw the introduction parental bereavement leave and pay in April 2020, this does not cover pregnancy loss before 24 weeks of pregnancy. Extending this statutory right does not appear to be on the government's current agenda.  However, with the media coverage of New Zealand's decision and Channel 4 and Monzo's policies and possibly a growing confidence for people to discuss pregnancy loss more widely, it is likely to be a topic which businesses and employees alike are considering.

The current position in the UK is that if an employee loses their baby after the 24^th week of pregnancy, or they lose their child shortly after birth, they will be entitled to take maternity or paternity leave and may be entitled to pay. In these circumstances, the employee will also be able to take parental bereavement leave and may be entitled to pay. There are no statutory protections for employees who suffer a miscarriage before the 24-week mark.

The position differs for employees whose surrogate mother loses their child. They will not be entitled to maternity leave. Where a surrogate is used, one parent is elected as "Parent A" and may take adoption leave and the other parent may be able to take paternity leave. Where the surrogate miscarries or the employee loses their child shortly after birth, the amount of leave the employee is entitled to differs based on whether they were going to take adoption leave or paternity leave:

• Adoption leave - if the employee's surrogate loses their baby before the pregnancy reaches 24 weeks, they will not be entitled to any leave. After the 24-week mark, if the employee has begun their adoption leave and they lose their child, they will be entitled to eight weeks of leave. If adoption leave has not started and they lose their child, provided that they had applied or intended to apply for a parental order within six months of their child's birth and expected the order to be granted, they will be able to take parental bereavement leave and may also be entitled to pay.

• Paternity leave – if the employee's surrogate loses their baby before the pregnancy reaches 24 weeks, they will not be entitled to any leave. If the surrogate loses the baby after 24 weeks, the employee may be entitled to paternity leave or parental bereavement leave and may also be entitled to pay.  

There are clear gaps in the statutory protections for employees who suffer a pregnancy loss before 24 weeks. Employees who are not covered by the current statutory protections will have to use the company's sickness procedure to take time off of work, or may be offered compassionate leave, with or without pay.

Even if an employee is entitled to statutory leave, they may not be entitled to pay if they do not have the required length of service with their employer.

Channel 4's policy

The policy is for all 'employees who suffer a pregnancy loss, whether it happens to them directly, their partner or their baby's surrogate mother'. The policy is therefore much more inclusive than the current UK statutory position outlined above and will apply irrespective of whether the pregnancy has reached 24 weeks. Similarly, Monzo's policy also applies to surrogate mothers and partners.

The policy has a wide definition of pregnancy loss which includes miscarriage, stillbirth, abortion, ectopic pregnancy, molar pregnancy and neonatal loss.

The key aspects of the policy are:

• there is no minimum length of service requirement for the policy to apply to an employee;

• affected employees will be entitled to a minimum of two weeks paid leave;

• employees will be able to self-certify and will not need a fit note for these two weeks; and

• the policy confirms that employees can discuss a temporary change to their working pattern on return to work.

How can employer's support their employees through pregnancy loss?

While there are statutory protections for employees who suffer certain types of pregnancy loss, these can be seen as a minimum benchmark for employers. As we are seeing with Channel 4 and Monzo, it is open to employers to offer employees support which goes above and beyond that available to them under legislation. Employers may already be offering this kind of support but formalising this practice through a policy will help ensure there is consistency across the business.

If you are thinking about implementing such a policy, we would be happy to help. Please do get in touch with your usual Foot Anstey contact or any member of our  Employment Team.