New Zealand brings in miscarriage leave – should the UK follow suit?
New Zealand has recently introduced new legislation which gives parents the right to 3 days’ paid bereavement leave if they suffer a miscarriage or still birth, at whatever time during the pregnancy this takes place. It becomes one of only two countries which currently offers this type of leave, alongside India. In the UK, a miscarriage in the first 24 weeks of pregnancy is not classed as “childbirth” and therefore the employee has no right to leave away from work, whether maternity, bereavement or otherwise. Whilst an employee may have more favourable rights under their employment contract, this will vary dramatically between organisations. With around 1 in 4 women experiencing a miscarriage, is it time to review this legislation and follow in New Zealand’s footsteps?
Statutory miscarriage leave: the Global Position
On 24th March 2021, New Zealand’s parliament unanimously voted to pass legislation that would give couples who suffer a miscarriage 3 days’ paid leave. New Zealand already had laws in place to provide leave to parents who suffer a still birth at 20 weeks or later, but this new legislation removes the time frame and provides a statutory right to leave for anyone who loses a pregnancy at any point.
India is the only other country to provide this type of leave. Under the Maternity Benefit (Amendment) Act 1961, employees who suffer a miscarriage at any time during their pregnancy are entitled to 6 weeks’ leave with wages paid at the rate of maternity benefits.
Law in the UK – before and after 24 weeks
After 24 weeks
If a baby is stillborn after 24 weeks of pregnancy, employees remain entitled to maternity and paternity leave and pay. In addition, as of April 2020, employees who experience a stillbirth after 24 weeks will now be entitled to further leave. On 6th April 2020, a new law was enacted which provides working parents who lose a child under the age of 18, or have a baby stillborn after 24 weeks of pregnancy, with the right to take two weeks’ paid bereavement leave. Parents can take the leave anytime within the period of 56 weeks starting from the date of the child’s death or stillbirth. This allows for employees to take time off around difficult periods, such as the child’s birthday or the first anniversary of their death.
Before 24 weeks
Currently, there are no specific statutory rights afforded to employees who suffer a miscarriage before 24 weeks of pregnancy.
When this occurs, the employee will typically have to take sick leave. Their partner may also be able to use their sick leave entitlement to deal with the psychological impact of the miscarriage or, failing that, unpaid leave to help care for the mother. Some employers will have their own internal policies to provide paid or unpaid compassionate leave to their employees who suffer miscarriages, but this is not mandatory and many employers will not have these provisions in place.
It has been argued that the use of sick leave in situations of miscarriage is deeply unsatisfactory. Ginny Anderson, the Labour MP who put forward the miscarriage leave bill in New Zealand summarised this, saying “the grief that comes with miscarriage is not a sickness; it is a loss… That loss takes time – time to recover physically and time to recover mentally; time to recover with a partner”.
Certainly, it is arguable that, in the UK, and many other countries besides, there is a gap in the support system for those who suffer a miscarriage before 24 weeks. Whilst New Zealand is only the second country to offer specific miscarriage leave, this legislation has received significant media coverage and it may serve to push the issue higher up on the agendas of other countries.
Should the UK follow New Zealand?
There does not appear to be any current plans for the UK to legislate on this matter but, as this topic has been thrown into the spotlight, there is likely to be an increased level of discussion around whether statutory leave should be provided to those who lose a baby before 24 weeks of pregnancy.
Indeed, a petition to parliament has already been commenced to extend statutory bereavement leave to pregnancy loss before 24 weeks. Currently, it has over 19,000 signatures. On 1 April 2021, the Government released a response to the petition, stating “The Government recognises that losing a child at any stage is devastating. Parental Bereavement Leave and Pay is a floor not a ceiling and we strongly encourage employers to go beyond if they can.”.
What can employers do in the meantime?
There is currently no official Government guidance for employers on supporting employees who have experienced a miscarriage; however, it is encouraging employers to gold-plate the current statutory provisions.
It is open to employers to consider implementing a formal miscarriage policy, which may cement the already existing informal practices of their organisation, and providing leave for a miscarriage at any stage of pregnancy. This will be attractive to current and future employees, assist with staff retention rates, and will also ensure consistency of treatment which is risked when using an ad-hoc case-by-case approach. The policy could cover areas such as how leave is given and whether it would be paid, confidentiality issues and potential training and awareness events within the organisation. It could also provide internal or external mental health support for employees.
The Miscarriage Association also provides useful resources for both employers and employees, emphasising the importance of a supportive workplace for employees coping with a miscarriage. Their website provides insightful information and ideas for employers to consider.