With the much-publicised news of Chrissy Teigen and husband John Legend’s miscarriage, and then, soon after, The Duke and Duchess of Sussex, the subject of miscarriage is starting to get the public platform it needs. The sad reality is that this is something that one in four women experience yet this is still a taboo subject within the workplace.
Perhaps understandably many women (and men) don’t want to share personal information like this with work colleagues. In addition, particularly if it happened early on, many women might not have shared the fact that they were pregnant in the first place. In many cases women, quite simply, won’t want work to know that they were trying for a baby, despite the many statutory protections women are now afforded to prevent discrimination on the grounds of pregnancy.
The reality is that, in the majority of workplaces, there will be women (and their partners) who have suffered miscarriages and HR professionals need to consider this. Many may simply not be able to ‘bounce back’. They may be taking unexplained absences, extended sick leave or struggle with performance issues. So, what should you do to help? And how can you help if, in many cases, you don’t know the full (or any of) details?
The first thing to consider is organisational culture. How is pregnancy received when news is shared? Do you have a culture where employees would feel comfortable sharing information about miscarriage? Do you need to consider changing this?
Second, you must not forget that women have protection in the workplace concerning pregnancy. The Equality Act 2010 means that women cannot be discriminated against because of pregnancy, or because of illness suffered as a result of it. This includes absence caused by a pregnancy-related illness. A miscarriage counts as such a ‘pregnancy-related’ matter and any absence falls within this.
This is where the first and second points blend. In reality many women feel pressured into returning to work earlier than they might want to, after a miscarriage. Managers need to be aware that they cannot use knowledge of a miscarriage against a woman when considering such things as promotion, bonuses, sick pay and redundancy selection. This would amount to direct discrimination, however kind the manager might think they were being.
And, of course, it goes as read that a woman cannot be dismissed where the principal reason for the dismissal is their pregnancy. If someone has taken a lot of time off following a miscarriage, their dismissal because of this could constitute automatic unfair dismissal.
Other things to consider:
- Whilst it is unlikely that a woman would want to take full maternity leave following a miscarriage she may wish to take some time off and this would not be counted as sickness absence. She would also be entitled to maternity pay and have the right to return to her joy.
- Similarly, if the miscarriage happened later in the pregnancy there is no reason the woman could not take a shorter amount of maternity leave than she might have already notified her employer of in her ‘expected week of confinement’ notice.
- Don’t forget: 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’.
If you would like to improve your organisational culture surrounding miscarriage The Miscarriage Association has produced an information pack with a great deal of helpful guidance as well as a draft miscarriage policy: https://www.miscarriageassociation.org.uk/information/miscarriage-and-the-workplace/
If you would like advice or guidance on this or any related matter please contact us directly.