Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.
The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?
Because a miscarriage is always pregnancy-related because an employee has to become pregnant to have a miscarriage, not to mention that miscarriage can lead to serious health complications for the women involved.
Despite this, many employers act in a discriminatory way against employees who have experienced a miscarriage. This is often unknowingly due to not believing it constitutes discrimination, however, this is no defence to a discrimination claim by an affected employee. Some examples of discrimination include:
(1) Noting absences linked to the effects of miscarriage on an employee’s absence record and inviting them to a formal absence management or absence review meeting. Instead, these absences should be discounted because they are pregnancy-related.
(2) Inviting employees to formal meetings due to technical breaches of their absence notification procedure (i.e. failing to call work before 9am to advise of non-attendance or having another person do so on their behalf) because of them being rushed to hospital due to the miscarriage or after-effects of miscarriage.
(3) Informing colleagues that they have miscarried without the consent of the employee. This could constitute pregnancy-related harassment due to the personal and emotional nature of this confidential information.
Now, there are many different definitions of miscarriage and these affect the individual’s rights in many ways. In employment law, it is usually given a wide definition and includes:
(a) Miscarriage before 24-week mark of pregnancy (no entitlement to statutory maternity leave and pay);
(b) Stillborn baby after 24-week mark of pregnancy (retains entitlement to statutory maternity leave and pay); and
(c) Stillborn and/or death of baby shortly after birth (retains entitlement to statutory maternity leave and pay).
The majority of discrimination occurs to mothers who lose their babies before the 24-week mark due to an incorrect presumption that these are ‘less painful’ or ‘easier to process’; albeit this isn’t to say that mothers who lose their babies after the 24-week mark don’t experience discrimination.
So, what should an employer do? Firstly, it is important to acknowledge that an informal approach is required. Forget the Handbook and procedures and, instead, focus on sitting down with the employee and asking what they need. If they request time off, strongly consider the request. If they have various follow-up medical appointments in the weeks afterwards, approve them. If they feel unwell at work, invite them to go home with full pay.
This will ensure that the employee feels supported during a period in which work, rightly, isn’t likely to be their priority. It will also result in the individual being in a position to return to work at an earlier date due to being able to recuperate and process what has happened. This blog is fairly rare for the fact that it focuses more on the employee’s needs than the requirements of legislation but, in all honesty, some things require emotional delicacy rather than rigid legal procedure and an employee’s miscarriage is definitely one of them.