Blog: Miscarriage – a workplace issue

This is not an easy topic to discuss, but an important one nonetheless. Many of you will have also seen recent press coverage following Chrissy Teigen and husband John Legend’s miscarriage.

It is a fact that 1 in 4 women experience miscarriage (in medical terms, the loss of a baby at any time before 24 weeks of pregnancy). Unsurprisingly, there are no statistics to show how many women keep their miscarriages a secret (save from their partners or very close family) but it is clear many women never reveal they have had a miscarriage (or miscarriages).

With the advent of social media, there are more celebrities willing to share their stories (Jules Oliver, wife of Jamie has recently revealed that she has suffered 5 miscarriages and Chrissy Teigen and husband John Legend shared their miscarriage story earlier this month).  Hopefully such profile discussions will have the effect of ensuring women feel safer sharing this very personal news.

Dealing with miscarriage in the workplace

Not surprisingly the last place a miscarriage is discussed is in the workplace. Understandably women don’t always want to share such personal information with work colleagues, but it is possibly more nuanced than that. For many women, it will be the case that if the miscarriage happens within the first 12 weeks of pregnancy, they won’t have told work or work colleagues they were pregnant. It’s understandable that in these circumstances a woman won’t wish to tell colleagues she was pregnant but isn’t anymore.

More importantly, some women won’t want to inform work that they’ve suffered a miscarriage.  They simply don’t want work (or more specifically their managers) to know that they are trying to have a baby in the first place.  Despite the various statutory protections given to women to ensure that they are not discriminated against because they ‘might’ have children, it is the case that conscious decisions are made every day in the workplace that disadvantage women of ‘child-bearing age’.

From an HR perspective, it is a difficult one to manage. You will without doubt have women in your workplace (and, importantly too, partners of women) who have suffered a miscarriage.  Even if you’re unaware, there will still be an effect in the workplace; many women who have miscarriages will not simply ‘bounce back’.  They may start taking unexplained absences from work, or perhaps their performance is not as good as it usually is.  As an employer you may well say ‘how can I help if I don’t know about it?’.

Supporting an employee affected by miscarriage and the employment rights to consider

Firstly consider your organisation’s culture. If employees don’t feel safe to tell you about a miscarriage, why is that? What role models are there in your organisation of women with children? Is getting pregnant considered a ‘career-ending’ event?

Second, remember that women have various protections in the workplace relating to pregnancy. The Equality Act 2010 protects women if they are treated unfavourably because of the pregnancy, or because of illness suffered as a result of it. Tribunals will give broad interpretation to what constitutes ‘a reason connected with pregnancy’ and will include absence caused by pregnancy-related illness. Where a woman needs to take sickness absence following a miscarriage, this should properly be recorded as ‘pregnancy-related absence’ and therefore should NOT be used when considering absence for such things as access to sick pay, redundancy selection, promotion, bonuses etc.

Many women report that they feel pressured to return to work sooner than they feel able to because of fears of how their absence will be treated by their employer.

Managers need to be aware that knowledge of someone’s miscarriage should not be used detrimentally against them when making decisions about their employment. A manager may think they are being kind to a female employee by not giving them a promotion ‘because they need time to recover from a miscarriage’, but this would amount to direct discrimination and any motives, whilst kindly meant, will not justify the treatment.

Separately (and in my mind a bit confusingly), women have a right not to dismissed where the principal reason for the dismissal is their pregnancy. The ‘reason’ will be given a wide interpretation here, and therefore if someone is dismissed because they have taken a lot of time off following miscarriages, this could amount to an automatic unfair dismissal (which is a ‘day 1 right’ and not one requiring 2 years’ service).

Can an employee take maternity leave if they suffer a miscarriage?

Whilst it is doubtful that a woman would want to take a full period of maternity leave in these circumstances, she might wish to avail herself of some of the protections that maternity leave can bring (time off work which is not counted as sickness absence, maternity pay with the right to come back to her job). Certainly, if the miscarriage happens nearer the 24 week period and the employee has given her statutory maternity notification to her employer of her ‘expected week of confinement’ and her intention to take maternity, there is no reason why she cannot take a shorter period of maternity leave if she choses to do so. I am not aware of this actually happening, but it appears to be a possibility. Maternity leave and pay is specifically available to women who suffer a stillbirth because it amounts to childbirth which is ‘the birth of a living child, or the birth of a child whether living or dead after 24 weeks of pregnancy’.

Being miscarriage-aware

As with other ‘life’ issues for employees (for example, menopause), how an employer responds to an employee’s personal situation can turn an average employer into a great one. If you want to be in the ‘great’ employer category, you can start by making your organisation more miscarriage-aware.

The Miscarriage Association have recently produced a fantastic information pack with loads of helpful detail and even a miscarriage policy: https://www.miscarriageassociation.org.uk/information/miscarriage-and-the-workplace/  It is well worth a look and also reminds employers that there are many people affected by miscarriage – including the often over-looked partner.  I was going to try to not mention COVID here – but, in these strange times, becoming a kinder workplace seems like a no-brainer.

If you would like to discuss any aspect of this blog, please contact us on 0117 325 0526 or email Anne-Marie:  anne-marie@menzieslaw.co.uk

Anne-Marie Boyle
Partner