The government has proposed an amendment to the Employment Rights Bill extending the new bereavement leave to include pregnancy loss before 24 weeks of pregnancy.
Miscarriage leave has been the focus of various proposals and legislative attempts in the past. Despite a clear gap in protection and recommendations from the Independent Pregnancy Loss Review, recent private member bills have failed to progress.
In January, the Women and Equality Committee proposed amendments to the Employment Rights Bill that would extend entitlement to statutory parental bereavement leave and pay to those suffering pregnancy loss before 24 weeks. Whilst this amendment received cross party support during the Bill's passage through the House of Commons, the government announced it would be discussed once the Bill had progressed to the House of Lords.
The government has now confirmed that the Employment Rights Bill will be amended to include pregnancy loss pre-24 weeks as a qualifying criterion for the new statutory bereavement leave. As the Bill currently stands, this will entitle an employee and their partner to one week of unpaid leave. This newly proposed right is not the same as statutory parental bereavement leave which is what the Women and Equality Committee (and the proposed amendment to the Bill with cross party support) had wanted.
What is the current position?
We have written in detail before about the fact that the law in Great Britain does not offer any specific protection to women suffering baby loss before the 24th week of pregnancy, or indeed to their partner.
While some employers offer more generous policies, individuals facing this difficult situation often have to take sick leave, or their partners may need to take unpaid time off to care for a dependent. The Committee's report highlighted that these options are frequently inadequate and inappropriate, given the significant emotional and psychological impact of pregnancy loss.
What about statutory parental bereavement leave and pay?
The only type of statutory bereavement leave at the moment is statutory parental bereavement leave, for those who sadly lose a child under the age of 18 and after 24 weeks of pregnancy (classified as a stillbirth). This allows employees (from day one of employment) to take up to two weeks of leave at any time within 56 weeks of the date of the child's death or stillbirth. Notice is minimal if the leave is taken within eight weeks of the death; one week's notice is required for leave taken after 8 weeks.
To qualify for parental bereavement pay, employees must have 26 weeks' service (ending with the week of the child's death) and earnings of at least £123 for the past eight weeks.
Further detail about how the right works in practice as the law currently stands can be found here.
What is being proposed now?
The original version of the Employment Rights Bill proposed a broader right of bereavement leave (one week of unpaid leave for those in a qualifying relationship to the deceased) but did not provide for pre-24 week pregnancy losses. The government now seems to have acknowledged the substantial evidence put before the Committee that highlighted the unfairness and stigmatising impact of this exclusion.
The new proposals would extend the new statutory bereavement leave to employees who experience pregnancy loss before 24 weeks. This would entitle mothers and their partners to at least one week of leave, although the exact amount of leave will be consulted on. The Bill is silent about pay and it is expected to be unpaid as there has been no commitment to paid leave.
The proposed definition of "pregnancy loss" aims to provide comprehensive protection covering the ending of a pregnancy before 24 weeks in any way other than a live birth. This would include abortions. It also includes implantation failure following IVF treatment.
What does this mean for employers?
The government has committed to consulting this autumn on the length of bereavement leave and how the right will work in practice. For instance, it is not currently known what sort of evidence (if any) an employee might need to provide.
The government's implementation roadmap indicates that bereavement leave will come into effect in 2027. There are some key considerations for employers to be aware of.
Take-up
Whilst the introduction of leave for pregnancy loss has been applauded, the practical impact of introducing unpaid leave is likely to be limited. It is well known that unpaid leave has low levels of take up. This is particularly apparent with this type of leave where both parents, particularly a mother, could take other paid leave, in the form of statutory sick pay (or company sick pay if offered). We have written here about the changes the Bill has made to statutory sick pay.
Employers may, however, see more partners deciding to take a few days off to offer support at home.
Should employers decide to enhance statutory bereavement leave, it is likely they will see increased up-take of the new right as a result. With an estimated 250,000 pregnancies ending before 24 weeks every year, employers enhancing this right should expect their HR departments to see a number of requests for this leave, particularly as it applies to both mothers and partners.
Enhancements
Employers should carefully think through the implications of enhancing bereavement leave/pay for pregnancy loss within the context of any enhanced pay for other bereavement leave . If an employer enhances leave/pay for those suffering a pregnancy loss, there would be a strong consistency argument for also enhancing pay for the two weeks of parental bereavement leave (which is paid at a statutory rate) for the loss of a child for consistency, and potentially for employees taking bereavement leave for other reasons.
If employers offer an enhanced sick pay scheme but do not enhance bereavement leave, there will be a tension between taking bereavement leave or taking sick leave. HR departments may find employees ask to take bereavement leave but still receive sick pay.
Timing of leave
The entitlement to one week of unpaid leave may not always be sufficient to allow employees to recover physically and emotionally, and be fit to return to work, depending on the circumstances of the pregnancy loss. Some employees may take statutory bereavement leave and then move to sick leave or request further unpaid time off. Others may take sick leave first and use their statutory bereavement leave further down the line, particularly if sick pay is enhanced. Any sickness absence that is pregnancy related should be recorded as such.
Confidentiality
Disclosing early pregnancy loss to an employer is a sensitive matter. If bereavement leave/pay is not enhanced, some employees may choose not to notify their employer of the real reason for their absence in any event. For employees who do opt to disclose the information, employers could consider allowing employees to disclose in confidence to HR only. The employee's wishes should be observed in relation to sharing information with colleagues about the reason and nature of the leave they are taking.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
