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Practical tips for employers drafting policies for baby and pregnancy loss and fertility support

Posted on 14 June 2022

Baby or pregnancy loss happens more often than many realise, with an estimated one in four pregnancies ending in miscarriage. How can employers support both those who suffer the distress and pain of loss of a pregnancy or baby and those undergoing fertility treatment, which can bring with it similar issues? This article highlights the existing framework of statutory employment rights for staff in this area, and considers practical issues to bear in mind for employers who are looking to introduce such policies.

The existing legislative framework

If a baby is delivered after the end of the 24th week of pregnancy and is stillborn or is born alive at any time of pregnancy and dies shortly after birth, UK legislation entitles a mother to maternity leave and any statutory maternity pay that they would otherwise qualify for. Their partner is entitled to paternity leave and pay if they meet the normal qualifying conditions. Parents in this situation may also qualify for parental bereavement leave and pay.

Any pregnancy loss that occurs before 24 weeks of pregnancy does not entitle an employee to any leave or pay. In most cases (outside of sickness absence) it is up to the discretion of the employer whether to offer compassionate leave, annual leave or unpaid leave in these circumstances.

Equally, the UK has no legislation entitling people undergoing fertility treatment to any time off work (whether for treatment or related sickness) outside of normal policies for medical appointments and sickness absence.  

We are seeing an increasing trend of employers introducing their own policies to cater for these circumstances. But it can be a daunting task to start with a blank piece of paper and attempt to support employees in these situations. The headline grabbing policies very often set specific periods and pay for leave of this sort. The most common is two weeks' paid leave in the event of pregnancy loss, and a modest number of days leave for women undergoing infertility treatment (with the partners of those women often being given much less time off). However, the most supportive policies we see in this area involve scope for discretion. So what should you consider?

Practical considerations

Don’t make assumptions

People are likely to experience a wide variety of emotions, reactions and medical needs in these circumstances. Any trauma they experience may be immediate or delayed. Their medical needs may also vary hugely.

Allow for the employee to take leave after a period of time

Not everyone will want to take time off immediately in these circumstances. However, the effects can be long lasting and/or delayed. Parental bereavement leave recognises this and the postponement of absence could be mirrored in any policy of leave an employer is introducing.  

Think carefully about confidentiality

There is increasing awareness of these issues but not everyone will be comfortable disclosing their own position. Aim to set up a system that allows employees to be open about their circumstances if they want to but does not require it. A simple practical step you could implement for this is to make sure that 'pregnancy loss' features on any automated drop down list of absence explanations – employees can then choose to use that option or not when registering absence.

Also consider how any messaging within an employee's team/business will be communicated. It may be easier for an employee to be given one point of contact who will then convey messages. 

Think about how to support the policy in practice

What can you do in addition to offering time off? How can you support employees in these situations to maintain an active role at work? Many employers are looking at introducing mentor/buddy systems, but you could also consider whether other changes may be appropriate. For example, be sensitive when making announcements of other pregnancies within an employee's team and consider being flexible about where a returning employee is working from if they are uncomfortable being seated with pregnant colleagues.

Be careful about inadvertently creating a 'hierarchy' of loss

There is an understandable assumption that a loss suffered in early pregnancy or a failed fertility cycle is far less traumatic than a later loss. However, that can be an overly simplistic view, particularly if it forms part of a repeated pattern (repeated miscarriage or failed fertility treatment for example) or are medically complicated events. Be careful that the relative periods of leave/pay that you are offering (which will most likely differ) do not imply a judgement on very personal circumstances.

Don’t be afraid to introduce a policy that has no set allowance for leave periods or pay

Just because you do not want to offer a standard amount of leave in any of these circumstances, don’t let that prevent you introducing policies that cover them. Some of the most effective policies can be those that simply open the door for conversations.

Finally, make sure that any policies can be easily located by employees

Rather than making these policies part of the suite of 'family friendly' policies in any handbook resource, consider adding them to a benefits section or a health support section. In any event, ensure that there is sufficient signposting to these policies so that they can be found easily.  

If you would like more information on how best to manage these issues in your business, please get in touch with your usual Mishcon de Reya contact or a member of our Employment team.

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