Outlook video: Maternity rights where the mother has a miscarriage or the baby is stillborn or dies

XpertHR's head of content Jo Stubbs and senior employment law editor Clio Springer discuss maternity rights where the mother has a miscarriage or the baby is stillborn or dies after birth. 

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The questions in full:

First of all, what is the difference between a miscarriage and a stillbirth?

A stillbirth is the birth after 24 weeks of pregnancy of a baby that has died in the womb, while the loss of a baby before this is referred to as a miscarriage. 

This 24-week point is important isn’t it, because it affects whether or not the woman is entitled to statutory maternity leave?

That’s right. For the purposes of the maternity leave regulations, childbirth means the birth of a living child (at any point), or the birth of a child, whether living or dead, after 24 weeks of pregnancy. A woman whose baby is stillborn after the 24-week point has been reached will be treated as having given birth, and will therefore be entitled to maternity leave, but a woman who has a miscarriage before this point won’t. 

In this latter case, presumably where the employee is off work as a result of the miscarriage she’s going to be entitled to statutory or contractual sick pay?

Yes. Her absence should be treated as sickness absence, so the employee is likely to be entitled to statutory sick pay, or occupational sick pay. The normal rules will apply. 

So, to confirm, where the child has died before birth, the point in the pregnancy at which the birth occurs will dictate whether or not the employee is entitled to maternity leave?

That’s right. 

And is the 24-week point in the pregnancy also important where the child is born alive but dies after birth?

Well, if we look again at the definition of childbirth, it covers the birth of a live child at any stage in the pregnancy. This means that if a child is born alive and subsequently dies – even after a very short period of time – the mother will be entitled to maternity leave, even if she was less than 24 weeks into the pregnancy when the baby was born. 

So it doesn’t matter how many weeks into her pregnancy a woman was if she gave birth to a live child? Even if the baby lives for only a few moments the maternity rights will apply?

That’s correct. 

How will the mother’s maternity leave start date be affected by a stillbirth or death after birth?

Employees can choose to start their maternity leave up to 11 weeks before their expected week of childbirth, so the employee may already have started her planned maternity leave. However, the majority of stillbirths, at least, occur before the woman has reached her delivery period. As many women choose to wait until relatively close to their expected week of childbirth to start their maternity leave, a woman may well not have started her planned maternity leave when she gives birth. If this is the case, her maternity leave will begin on the day after the day of the birth. 

Presumably in those circumstances the employee has to notify the employer that the birth has occurred? 

That’s right, as soon as reasonably practicable after the birth. The employer will need this information to respond to the employee setting out when her additional maternity leave will end. 

Am I correct in thinking that the normal rules relating to statutory maternity pay will apply?

Yes. Assuming the employee meets the minimum service and minimum earnings criteria, she will be entitled to statutory maternity pay. Where the stillbirth or birth occurs before the employee has gone on planned maternity leave and is already receiving maternity pay, she will need to provide evidence of the date the baby was born in order to receive maternity pay. 

Employees are entitled to 52 weeks’ maternity leave. In these sad circumstances where an employee is on maternity leave following a stillbirth or where the baby has died, should the employer assume she will take the full 52 weeks’ leave?

Yes. Obviously the employee’s response to the situation will depend on the individual and her circumstances. One person's coping strategy might include returning to work as soon as possible, while another might wish to take a lengthy period away from work. However, the employee's maternity leave and pay rights will be unaffected by the fact that the baby was stillborn or died, and the employer shouldn’t assume that she will return to work early. What it can do is to send her a sensitively worded letter confirming her entitlement and setting out what she should do if she intends to return to work before the full 52 weeks are up. 

And that would be to give eight weeks’ notice, as it would with any other employee who intended to return to work before she’d taken her full maternity leave entitlement?

That’s right. In the circumstances it wouldn’t be surprising if the employee gave notice of her intended early return but changed her mind and decided to stay on maternity leave, which she’s entitled to do by giving the appropriate notice. Or she might return from maternity leave and then be signed off sick. 

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XpertHR "How to" section

How to deal with pregnancy and maternity rights Practical guidance for employers on pregnancy and maternity issues including antenatal care, keeping-in-touch days, miscarriages and stillbirths, IVF treatment, holiday and maternity leave, and employees on maternity leave whose role is redundant. 

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XpertHR Liveflo

Assess the risks to a new mother Use this workflow to comply with your health and safety duties in relation to a woman who has returned to work within six months of giving birth. Where a risk exists there may be an obligation to alter her duties, offer suitable alternative employment or suspend her. 

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XpertHR policies and documents

Maternity rights Model policies, letters, contract clauses and forms relating to pregnancy and maternity leave, including the situation where the mother has suffered a miscarriage or stillbirth, or the baby has died. 

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XpertHR good practice guides

Good practice guide on maternity Guidance on maternity good practice, including where the baby is born prematurely, and where the mother has a miscarriage or stillbirth. 

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