Baby Loss awareness week: 9th -15th October 2022

Between the 9th and 15th October 2022 is Baby Loss Awareness Week. Now in its 20th year, it is a time for those affected to remember their lost loved ones, and to raise awareness of baby loss.

Workplace support

How an individual deals with baby loss will be unique to them, shaped by their journey to becoming pregnant and the circumstances of the loss. Because of this, it is important not to treat all those impacted by this the same, but instead treat them as individuals and be guided in how they wish to be supported.

That being said, there are some basic measures employers can put in place to support their staff, such as making counselling available to employees, either via an Employee Assistance Programme (EAP) provider or directly with a local counselling service.

Employers should also ensure their managers are well trained in dealing with these conversations sensitively. They may get actively involved in the delivery of support, or act as a signpost to resources that either the organisation or external sources offer.

Parental Bereavement Leave

Parental Bereavement Leave and Pay is available to parents whose child dies under the age of 18, or is stillborn after 24 weeks. This applies regardless of the employee’s length of service.

Parental Bereavement Leave can be taken as either:

  • two weeks together
  • two separate weeks
  • one week alone

The leave can start on or after the death or stillbirth and must finish within 56 weeks of the death or stillbirth. If Parental Bereavement Leave is interrupted by another type of statutory leave, such as a pre-arranged period of Shared Parental Leave, any remaining Parental Bereavement Leave can be taken after the other leave has ended.

Maternity Leave

In cases of stillbirth after 24 weeks, or where the baby was born living at any point in the pregnancy, both Ordinary and Additional Maternity Leave is still available to the mother.

However, she may wish to bring forward her return date (or she may not). The normal notice rules for altering a return date from Maternity Leave will apply (28 days written notice), although employers may use their discretion to waive this, given the circumstances.

Paternity Leave

Paternity is also available where the baby is stillborn after 24 weeks, or born living at any point in the pregnancy.

Shared Parental Leave

To take this leave, it must have been booked before the baby died, which will have involved the mother curtailing her maternity leave in order to ‘share’ leave. As such, it is unlikely that this leave will have been arranged where the baby is lost early on in the pregnancy. Employers may therefore decide to use their discretion to allow some other form of leave to be taken.

Sick Leave

Losing a child can be devastating, and the employee may be too unwell to work. If this is the case, the usual organisational sickness rules will apply, i.e. sick pay and certification.

A note on miscarriage

Under the Equality Act 2010, both sex and pregnancy and maternity are protected characteristics as under section 4. This protection continues for two weeks after a miscarriage.

In the case of Stokes v Glenham Property Management Ltd, the claimant lost her baby via miscarriage. She was absent from work on pre-booked annual leave, and was then signed off work before returning to work, taking her over two weeks since the miscarriage.

Shortly after, the claimant was dismissed via a letter, stating that she was “not fit to complete [your] role” due to absence, leading to a claim of discrimination. Finding for the claimant, the tribunal recognised that whilst the two-week time limit had ended at the point of dismissal, nevertheless this was sex discrimination by reason of dismissal due to the miscarriage, which is unique to the female sex.

Next steps

This is a week for employers to assess what support they offer, and re-promote it, or consider introducing it. It is also an opportunity to review internal policies and procedures, to ensure they accommodate baby loss by giving the employee time to come to terms with the loss without worrying about work.

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