Can I take time off work for a miscarriage?

There is currently no statutory right to leave due to miscarriage.

A miscarriage is the loss of a pregnancy before 24 weeks. There is currently no statutory right to paid leave, as you won’t qualify for maternity, paternity or parental bereavement leave.  However, a growing number of employers are introducing miscarriage or pregnancy loss policies that include provision for time off following a miscarriage.

Can I take time off work following a stillbirth?

A stillbirth is the loss of a baby before or during birth after 24 or more weeks of pregnancy. Employees are entitled to statutory maternity, paternity and parental bereavement leave following a stillbirth.

Because of the differences in provision, the rest of this post concentrates on what happens with miscarriages prior to 24 weeks of pregnancy.  We will post a separate blog on stillbirth in due course.

What are the rules for miscarriage leave?

Due to the lack of statutory rights in relation to miscarriage and pregnancy loss, it’s hard to generalise about the rules for miscarriage leave, as it will depend on the employer’s particular provision and often, frankly, how your manager and HR team respond.

Although there is no statutory right to time off following a miscarriage, many women will want to take time away from work to recover physically and emotionally following the loss of a pregnancy.

If you aren’t feeling well enough to work, and many women won’t be, due to the physical and emotional impact of a miscarriage, then you can take time off sick. It’s a good idea to get a fit note from your GP or obstetrician, confirming that you are off work because you’ve just had a miscarriage.  Whether or not you get a fit note, it’s important to record your absence as pregnancy related.  This is to protect you from the period of leave being counted for things like trigger points for action under absence management policies or redundancy selection criteria.

What is the workplace policy for miscarriage?

Workplaces with a miscarriage or pregnancy loss policy

Some employers are introducing miscarriage or pregnancy loss policies that provide for specific amounts of paid leave following a miscarriage, in recognition that sick leave, compassionate leave, and other types of leave don’t address the specific nature and impact of a miscarriage. If your employer has a pregnancy loss policy, that will be your first point of reference.

For cases of surrogacy, adoption and assisted conception, the framework of a pregnancy loss policy should deal with the inherent differences from a pregnancy loss by the employee herself or her partner, and address the fact that in all cases of pregnancy loss, those involved will all be going through physical and emotional distress.

Workplaces without a miscarriage or pregnancy loss policy

If your employer doesn’t have a pregnancy loss policy, it might be a case of cobbling together information from other policies. Often the best thing is to speak to your line manager or HR, to explain the situation and what time off you think you need.

If you work on a hybrid basis, (or have a job that you can do remotely) perhaps there will be a point where you feel able to work but not to face people in real life, or deal with the practicalities of your physical recovery outside the privacy of your home.  In that case, you could request a short term informal flexible working arrangement to work from home while you recover.

Partners may also want to take time off work to deal with grief.

What about partners?

Equally, partners may well need time off to deal with their own grief and to support their partner.  Partners should be provided for in a pregnancy loss policy, but in the absence of a policy, again, as the partner of a women who’s just had a miscarriage, it’s often best to speak to your line manager or HR.  Usually, partners would be given compassionate leave (which could be paid or unpaid), or these days, perhaps additional flexibility via more time working from home might be requested on a short term basis.

What are my employment rights if I have a miscarriage?

Employees are entitled to take time off work sick when unfit to work (for any reason, but here we’re talking about time off sick following a miscarriage). Sick leave should be recorded as being due to pregnancy loss, so that it can’t (fairly) be counted for absence management or redundancy processes.

In addition, women are entitled not to be discriminated against because of their sex or pregnancy.  So, again, time off sick following miscarriage shouldn’t be used against an employee in a subsequent absence management or redundancy process, as this would be discriminatory because of sex and/or pregnancy. It would also likely lead to an automatic unfair dismissal claim if a woman was selected for redundancy because of having taken time off after a miscarriage.

Importantly, the protection from pregnancy discrimination lasts until two weeks after the loss, though this shouldn’t be taken as the length of time it’ll take to recover – that’s a totally different matter. So, you’re entitled not to be treated less favourably because of your pregnancy, both during pregnancy and for another two weeks after a miscarriage.  This should cover at least some of the time taken off sick to recover, and certainly the initial days when you’ll be speaking to your manager or HR about taking time off and their response.

How long should I take off work after a miscarriage?

That’s a tricky question – it will depend on the circumstances and your own needs.  There’s no right answer – in the human sense, not the employment law sense.

From an employment law perspective, managers and HR should respond sympathetically and use their miscarriage and pregnancy loss policy.  If there’s no policy, talk to each other, get advice and work out what’s best for both parties.  If there’s a Mental Health First Aider, seek their advice.

Sometimes, you feel that you’ve returned to work too early and find once the immediate shock has receded that you need to take more time out.  Policies might provide for this, but again it’s important to record the time off as pregnancy related. The question of pay will arise, and if not covered in a policy, might be a topic for debate.  Flexibility around working hours and location can help.

Whilst there may be no definitive right answer, there will often be plenty of ways to demonstrate that the wrong answer has been given, and in some cases a grievance may be appropriate.

Employment Law Solicitor

If you need more help with the subjects covered here then do reach out to our expert solicitors.  You can speak to our employment solicitors online via email employment@qlaw.co.uk or call us on 03300 020 863.

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