Leading the way: it’s time for action on pregnancy loss

Kingsley Napley has recently introduced a formal workplace policy providing paid time off for all staff who are directly or indirectly affected by pregnancy loss. This is not only a significant enhancement to the provisions required by law but is also, I understand, the first of its kind being put in place by a UK law firm. We hope other firms in our sector and beyond will follow suit and normalise protection in this space, thereby supporting the wellbeing of those affected and protecting talent.

What brought this on?

Pregnancy loss is heartbreaking and more common than you might think. According to the UK’s Miscarriage Association, one in four pregnancies result in miscarriage (defined in the UK as the loss of a pregnancy within the first 23 weeks and six days of pregnancy). According to the National Health Service website, around one in 90 UK pregnancies is ectopic and one in every 200 births in England is a stillbirth (death occurring after 24 weeks of pregnancy).

I have had clients and friends who have suffered pregnancy loss and have seen the devastating impact it can have on people, both physically and emotionally, with feelings of guilt, shame, embarrassment, and loneliness being common.

Despite the statistics, time and again I have seen that pregnancy loss is still very much a taboo subject and people are uncomfortable raising it with employers or colleagues. The fact that many people do not announce their pregnancy within the first 12 weeks (which is when most miscarriages occur) increases the likelihood of them being isolated when faced with pregnancy loss and feeling like they have to deal with the bereavement alone and without support.

In light of these factors – and inspired by the reaction I received on social media when I commented on the recent news that Channel 4 and Monzo had introduced pregnancy loss policies – I decided to approach Kingsley Napley’s HR team (in my capacity as chair of the firm’s Parents and Carers’ Group) with a proposal that we also put a formal policy in place. The proposition was supported by the HR and management teams and a policy was swiftly drawn up and announced.

Managing partner, Linda Woolley, summarised the thinking perfectly when she said that the “covid pandemic has been a powerful reminder that we bring our whole selves to work and that we all have personal life challenges to deal with sometimes which can affect our work. We want our people who face such a situation to feel that they can have a conversation with us and feel supported”.

Having a formal policy in place sends a clear message to staff that those affected by pregnancy loss should not feel shy about coming forward and that they will be met with support by their employer if they do. It enables people to ask for help without fear of being discriminated against, stigmatised, or judged. It is also a significant step towards normalising what has historically been a taboo subject. In short, it is the right thing to do.

The current legal position in the UK

Since 6 April 2020, employees have the right to take statutory parental bereavement leave on the death of a child under 18 years of age, including stillbirth after 24 weeks of pregnancy.

Also, if stillbirth occurs after 24 weeks of pregnancy, the parents are entitled to the same statutory maternity and paternity leave and pay they would have been entitled to had the stillbirth not occurred. This does not apply in other forms of pregnancy loss.

There is no legal entitlement to any leave or pay in circumstances where pregnancy loss occurs before 24 weeks. In those cases, employers have the discretion to offer their staff leave under their compassionate leave policy (if they have one), annual leave, or unpaid leave. Depending on the circumstances, the employee may also be signed off sick for medical reasons.

Our policy

Kingsley Napley’s policy entitles all employees – regardless of their length of service or sex/gender – to ten days’ paid leave if they or their partner experience the loss of a baby through miscarriage, abortion, stillbirth, ectopic pregnancy, or neonatal pregnancy, without having to certify their absence.

In addition, the firm will provide paid leave to attend medical appointments (or to accompany a partner to such appointments) that do not fall within the agreed period of leave (for example, medical examinations, scans/tests, and mental-health-related appointments).

Staff may also be entitled to additional leave under the firm’s existing sickness absence, annual leave, or compassionate leave policies.

What else can employers do?

Putting in place a formal policy is clearly one way of supporting staff affected by pregnancy loss. However, it is not the only way and there are plenty of other things employers can do. Examples include:

• Raising awareness of pregnancy loss by sharing information (there are plenty of materials on the Miscarriage Association’s website) and promoting open conversations about the matter so that it is not seen as a taboo, or “no-go area”. Employees should be given comfort that they can have confidential conversations with their manager or HR in the event they are affected by pregnancy loss.
   
• Signposting other sources of information and support, such as any employee assistance programmes offered.
   
• Training managers in spotting the signs that an employee may be experiencing loss and how to support them by sensitively acknowledging their situation, explaining what help the employer can provide, and reassuring them that they will not be disadvantaged if they take leave.
   
• Extending existing benefits such as compassionate leave and pay to expressly cover pregnancy loss.
   
• Offering paid leave for employees to attend medical appointments associated with pregnancy loss (including mental-health-related appointments).
   
• Offering unpaid leave to those who need time off for an extended period, such as those suffering from extended physical or mental effects of pregnancy loss.
   
• Offering a phased return to work and, possibly, flexible working to those who take a period of leave following pregnancy loss.

Pregnancy loss is a tragic and traumatic experience which people should not have to endure alone. It is hoped that with increased awareness of this in society, together with forward-thinking employers like Channel 4, Monzo Bank, John Lewis & Partners, and Kingsley Napley leading the way, the pain of those people will be acknowledged and they will be given the support they need because, as we all know, “pain shared is pain lessened”.

This article was first published by International Employment Lawyer, you can also read in full by clicking here.

FURTHER INFORMATION

If you would like any further information or advice about the issues explored in this blog, please contact Moira Campbell or another member of our employment team

ABOUT THE AUTHOR

Moira  is a highly experienced employment solicitor. She has successfully represented both employers and employees in the Employment Tribunal for unfair dismissal, discrimination, whistleblowing and breach of contract claims.  She has particular experience of advising employers and senior executives in respect of redundancy situations and diversity and equality matters.

Moira’s clients include senior executives, partners and employers, working within a broad range of industries. She regularly acts for clients within the financial and professional services, tech, media, design, publishing, manufacturing and fashion industries.