This last week (9th-15th October) marked Baby Loss Awareness Week in the UK. The theme for this year was ‘Together, we care’ with a focus on finding time to care for each other, as part of a community of people affected by all forms of pregnancy and baby loss.

This year’s theme is a rallying call to employers: an opportunity to demonstrate support for employees affected by baby loss and to reflect on whether they are creating a supportive environment for the community of people working for them.

Whilst it is important for employers to understand the legal rules surrounding baby loss at different stages of the pregnancy journey, this topic is one where, once the legal position is understood, the practical response of employers is just as important.

Employment rights and baby loss

The employment rights associated with baby loss depend largely on the stage that loss occurs.

After 24th week of pregnancy:

In circumstances where a baby is lost after the 24th week of pregnancy, all the legal consequences of childbirth apply so the mother will be entitled to maternity leave and statutory maternity pay will also be available. Equally, partners may also be eligible for paternity leave.

The special redundancy protection afforded to pregnant women applies in full if an employee suffers a miscarriage or stillbirth after 24 weeks of pregnancy: the redundancy protected period (where the protected employee is entitled to first refusal of suitable alternative employment) ends 18 months from the date of birth.

Employees may also be entitled to two weeks’ statutory parental bereavement leave and pay, providing employees with a right to time away from the workplace to grieve. Under the Employment Rights Bill there are plans to introduce a further (likely unpaid) week of more general ‘bereavement leave’ which would be in addition to this. The Employment Rights Bill roadmap proposes to bring in this change in 2027.

Where a baby is born alive after the 24th week of pregnancy and spends at least seven consecutive days in neonatal care before passing away, the parents may be entitled to neonatal care leave (and pay) if eligible. Broadly, this provides parents with the right to take time off equivalent to the time that their baby spends in neonatal care.

Before 24th week of pregnancy:

Where an employee suffers a miscarriage in the first 24 weeks of pregnancy, these rights do not currently apply.

However, the Employment Rights Bill has recently been revised to extend the new concept of ‘bereavement leave’ to cover families who experience pregnancy loss before 24 weeks. This will be a right to at least one week of (likely unpaid) leave in the event of baby loss before 24 weeks. The right is unlikely to be brought in until 2027.

It is also worth noting that redundancy protection has been extended to cover women who unfortunately suffer a stillbirth or miscarriage. If an employee suffers a miscarriage within the first 24 weeks of pregnancy, they will have protection during their pregnancy and for a two-week period following the miscarriage.

Ideas for a practical response

In the spirit of the theme of ‘Together, we care’ many employers are looking at ways to support employees who suffer baby loss in ways which go beyond the limited protections offered by law. Ideas include:

  • Making sure that HR and line management are fully aware of the intersecting legal rights to leave in cases of baby loss. Consider mapping across all relevant policies to make sure they are able to join up the different types of leave (and pay) which are potentially triggered in circumstances of baby loss. Consider having a factsheet available (either for internal HR/line management use or, if deemed appropriate, to distribute to affected staff members).  You need to be ready to present the grieving employee with a clear picture of their right to take time away from work following their loss, as workplace logistics and policies will be the last thing on their mind.
  • Having a policy or guidance where pregnancy and baby loss is explicitly referenced, so employees feel empowered to ask for support. Consider whether it is appropriate for this information to be contained within other ‘family leave’ policies (for example, maternity leave) or whether this may be itself be triggering.
  • Offering enhanced leave and pay to employees who suffer a baby loss to allow them time to grieve without feeling they have to rush back to work. Employers could also consider offering paid counselling.
  • If an employer’s enhanced maternity policy is capped at a certain number of periods of leave (they are often limited to two periods of maternity leave) then consider exercising flexibility where a maternity leave period is triggered following baby loss. The employee may not take a long period of time away from work but, if the policy is applied rigidly, would have lost the opportunity to receive enhanced pay in a future pregnancy.
  • Training managers so that they have the skills and confidence to navigate difficult conversations around baby loss.
  • Recognising that annual events such as Mother’s Day and Father’s Day can be triggering to those who have experienced baby loss, and making sure that such events are handled sensitively.