Rights following loss of pregnancy letter

Where a pregnant employee suffers either a miscarriage or a stillbirth, send our letter to advise her of her entitlements to maternity and/or sick leave. Only employees who are more than 24 weeks pregnant will be eligible for maternity leave.

Miscarriage

A woman who has a miscarriage before the end of the 24th week of her pregnancy won’t be entitled to either maternity leave or statutory maternity pay (SMP). If she’s absent from work following the miscarriage, it will need to be sick leave and in most cases she will be entitled to statutory sick pay (SSP) if she fulfils the qualifying conditions - or discretionary or contractual sick pay if that’s provided for in her contract of employment. You should treat her in the same way as any other employee who is signed off sick and so she will need to comply with your sickness absence reporting procedures and provide appropriate evidence of incapacity. There’s no legal duty on you to continue normal salary during a period of sickness absence due to a miscarriage if all you normally pay during sick leave is SSP. However, if you have discretionary sick pay under which you may pay a number of weeks at normal salary, you need to ensure you exercise your discretion fairly and reasonably and that you don’t discriminate against an employee because she’s off sick for a pregnancy-related reason.

Stillbirth

An employee who gives birth to a stillborn child at any time after more than 24 weeks’ pregnancy is entitled to take maternity leave and be paid SMP (provided she’s otherwise eligible to receive it) in exactly the same way as an employee who gives birth to a healthy baby at full term. Unless the employee’s maternity leave had already started, her maternity leave will begin automatically on the day after the day of stillbirth. If, as a result of the stillbirth, the employee’s maternity leave starts earlier than the date she previously notified to you, you’ll need to write to her within 28 days of the notification of the stillbirth with a revised end date for her maternity leave period. If you fail to respond within 28 days, that will undermine your right to prevent her returning to work early before the end of her maternity leave where she’s not given sufficient notice of an early return (see below). Our Rights Following Loss of Pregnancy Letter protects you on this point.

Return to work

Many employees who have suffered a stillbirth won’t want to be absent from work for a year on maternity leave but will want to get back to some level of normality. If an employee wants to return to work earlier than the end of her maternity leave, she can do so but she needs to give you at least eight weeks’ advance notice of her intended early return date.

Our letter has three optional sections so you just need to select the one that applies:

• the employee has suffered a miscarriage before the end of the 24th week of her pregnancy; or
• the employee has suffered a stillbirth after the end of the 24th week and had not yet started maternity leave; or
• the employee has suffered a stillbirth after the end of the 24th week and had already started maternity leave.

In each case we’ve set out the employee’s legal entitlements, including the right to return early by providing proper notice.