Supporting an employee who has had a miscarriage or stillbirth
In this guide:
- Pregnancy at work
- Health and safety of pregnant workers
- Medical suspension on maternity grounds
- Employees' right to paid time off for antenatal care
- Pregnant workers, dismissal and discrimination
- Breastfeeding and the workplace
- Supporting an employee who has had a miscarriage or stillbirth
- Fertility treatment and the workplace
Health and safety of pregnant workers
Employers' additional health and safety obligations towards pregnant workers and female workers of childbearing age.
You have a legal duty to protect the health and safety of pregnant mothers at work. This includes workers who could be pregnant as well as those who you know are pregnant.
Workplace risk assessment
Some substances, processes, and working conditions may affect human fertility as well as pose a risk to a pregnant worker and/or her unborn child. Therefore, you must think about the health of women of childbearing age, not just those who have told you that they are pregnant.
If you employ women of childbearing age, you should, as part of your normal risk assessment, consider if any work is likely to present a particular risk to them - whether or not they might be pregnant.
As part of your legal duty to take measures to protect your workers, all employers must undertake a workplace risk assessment for their pregnant employees. For further information see risk assessment for pregnant workers and new mothers - employer guidance from the Health and Safety Executive NI (HSENI).
Notification from a pregnant worker
You should also encourage workers, eg, via your workplace fertility policy, pregnancy at work, maternity policy or staff handbook, to notify you as soon as possible if they become pregnant. This is so you can identify if any further action is needed.
You are entitled to ask a pregnant worker to provide:
- notification of her pregnancy in writing
- a certificate from a registered medical practitioner (MATB1 form) or a registered midwife showing that she is pregnant
- the date that she wants her maternity leave to start
Note that you do not have to:
- begin to take any action in relation to a particular pregnant worker's health and safety until she gives you written notification
- maintain any action in relation to her where she has failed to give you the certificate within a reasonable period of time - although you must have requested in writing to see the certificate
Once a worker notifies you that she is pregnant, you should review the risk assessment for her specific work and identify any changes that are necessary to protect her health and that of her unborn baby. Involve the worker in the process and review the assessment as her pregnancy progresses to see if any further adjustments are needed.
However, even if a pregnant worker has not formally notified you of her pregnancy, it is good practice to do a risk assessment for her if you become aware that she is pregnant.
For more information on health and safety risk assessments, see health and safety risk assessment.
Pre-maternity leave meeting
It is good practice for an employer to hold a pre-maternity leave meeting with an employee to discuss and agree issues such as:
- handover and cover for her work during maternity leave
- keeping in touch days (including the employee's preferred contact details and method)
- receiving work related information
- employees right to shared parental leave
- annual leave including any untaken accrued annual leave
Potential hazards for pregnant workers
Things that might be hazardous to female employees - and pregnant workers in particular - include:
- mental and physical fatigue caused by long working hours
- night-time working
- work-related stress
- skin protection from sun exposure when working outdoors
- excessive noise
- extremes of cold and heat
- threat of violence in the workplace
- exposure to harmful substances, eg, lead, radioactive materials, toxic chemicals like mercury and pesticides, infectious diseases, carbon monoxide, and antimitotic (cytotoxic) drugs
- exposure to radiation
- lifting/carrying heavy loads
- working at heights
- exposure to infectious diseases
- sitting or standing still for long periods of time
- unhealthy workstations or posture
- lone working
- exposure to vibration
If you identify a risk that could cause harm to your worker or their unborn child, you must decide if you can control it. If you cannot control or remove the risk, you must do the following: adjust working conditions or working hours to avoid the risk or offer her suitable alternative work.
If this isn't possible, you must suspend the worker on paid leave for as long as necessary to protect their health and safety and that of their child.
Managing the health and safety of pregnant workers and new mothers - HSENI employer guidance.
Rest facilities for pregnant and breastfeeding mothers
You're required by law to provide somewhere for pregnant and breastfeeding mothers to rest.
Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.
You are legally required to provide a suitable area where employees can rest, including somewhere to lie down if necessary. You must provide a private, hygienic, and safe room for nursing mothers to express milk if they choose to and somewhere to store breast milk, eg, a fridge. Toilet facilities are not a suitable or hygienic place for this purpose.
Although there is no legal right for an employee to take time off from their job in order to breastfeed, express milk for storage and later use, or take rest periods you should consider adapting working hours to enable an employee to continue to breastfeed or express milk. A refusal to adpapt working hours could be indirect sex discrimination unless the employer can show the refusal is justified by the needs of the business.
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Medical suspension on maternity grounds
When an employee who is pregnant, or has recently given birth, or who is breast-feeding may have to be suspended from work on maternity grounds.
Where an expectant or new mother would be exposed to risk if she continued to perform her contractual duties, the employer is obliged to alter her working conditions or working hours if it is reasonable to do so and if it would avoid the risk. If it is not reasonable to make alterations, the employer must offer the employee suitable alternative work, or if that isn't possible, suspend the employee from work for as long as necessary to avoid the risk.
If an employee is medically suspended from work because of health and safety reasons, an employer can start the employee's maternity leave from 4 weeks before the week the baby is due. If an employee's baby is due in less than 4 weeks, their maternity leave will start automatically.
Right to the offer of alternative work
Where an employer has available suitable alternative work for an employee, the employee has a right to be offered the alternative work before being suspended from work on maternity grounds. For alternative work to be suitable for an employee for this purpose:
- the work must be of a kind that is both suitable in relation to her and appropriate for her to do in the circumstances, and
- the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions
In summary, an employee who is pregnant, has recently given birth, or who is breastfeeding may have to be suspended from work on maternity grounds if continued attendance might damage her or the baby's health.
In general, the duty to suspend from work does not arise unless and until the employee has given the employer written notice that she is pregnant, has given birth within the previous six months, or is breastfeeding.
An employee who is suspended is entitled to full pay, which includes any bonuses or commissions they would have been paid. Their suspension should last until the risk to them or their baby has been removed.
If the employee unreasonably refuses suitable alternative work, the employer doesn't have to pay them.
An employee is entitled to make a complaint to an industrial tribunal if there is suitable alternative work available which her employer has failed to offer her before suspending her from work on maternity grounds. They can also complain to an industrial tribunal if they don't get the right amount of pay.
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Employees' right to paid time off for antenatal care
A pregnant employee is entitled to paid time off to attend antenatal care appointments during working hours.
All pregnant employees have the right to reasonable paid time off to attend antenatal care appointments. Employers should bear in mind that the right to paid time off is a right to be permitted time off during working hours, and it will not be reasonable for the employer to avoid this by rearranging the individual's working schedule or requiring her to make up lost time.
Antenatal care covers not only medical examinations related to the pregnancy but also, for example, relaxation classes and parent-craft classes. There is no service requirement for this right.
However, the right to time off only applies if the appointment is recommended by a registered midwife, health visitor, registered nurse, or registered medical practitioner (eg, a doctor).
Therefore, you are entitled to ask for evidence of antenatal appointments - except in the case of the very first appointment.
You can request that the employee show you:
- written documentation from a registered medical practitioner, a midwife, or a health visitor confirming that she is pregnant
- an appointment card or some other document showing that an appointment has been made
Reasonable time off for medical appointments
The law does not set out what 'reasonable' means regarding time off. Employees must request the time off and have the right not to be unreasonably refused time off. Tribunals are likely to find it unreasonable if an employer refuses to allow time off for appointments that are based on medical advice. Part-time employees should not be pressured to take appointments on their days off.
The amount of time off will depend on the time that the appointment is made, and it will not be unreasonable for an employer to expect an employee to attend for the part of the day that they can outside the appointment time. Time off also includes travelling time and waiting time for appointments. Abuse of the time off provisions may normally be handled under the absence management procedures, but should be handled with caution.
Payment during time off
You must pay the employee her normal hourly rate during the period of time off for antenatal care.
Where the employee is paid a fixed annual salary, she should simply be paid as normal. In other cases, calculate the rate by dividing the amount of a week's pay by the number of the employee's normal working hours in a week. The normal working hours will usually be set out in her contract of employment.
If her weekly working hours vary, you should average them over the previous 12 complete working weeks. If the employee has yet to complete 12 weeks' service, estimate the average considering:
- what could be reasonably expected from her contract of employment
- the work pattern of any fellow employees in comparable jobs
Overtime is counted only if it is required and contractually guaranteed.
Labour Relations Agency (LRA) guidance on time off work rights and responsibilities.
Complaints relating to time off for antenatal care
A pregnant employee could bring an unlawful discrimination and/or unfair dismissal claim to a tribunal if you:
- dismiss her or treat her unfairly because she tried to exercise her right to time off for antenatal care
- unreasonably refuse her time off for antenatal care
- deny her normal rate of pay during such time off
A pregnant employee can bring a claim regardless of whether or not:
- she actually has exercised the right to paid time off for antenatal care
- that right has actually been infringed
All she has to have done is act in good faith in seeking to assert the right.
See pregnant workers, dismissal and discrimination.
Time off to accompany to antenatal appointments
Following changes to the Work and Families Act (Northern Ireland) 2015, both employees and Agency workers, who have a qualifying relationship with the pregnant woman or her expected child, have the right to unpaid time off to attend up to two antenatal appointments. There is no qualifying period for entitlement to this right. An agency worker will have rights to antenatal medical appointments and antenatal classes, after completing a 12-week qualifying period on the same assignment if they cannot reasonably arrange them outside working hours. The employee or agency worker must request the time off and cannot simply rely on these provisions as an after-the-fact justification for the absence from work. The right applies whether the child is conceived naturally or through donor insemination.
A person in a qualifying relationship would include:
- the husband or civil partner of the pregnant woman
- a person who lives with the pregnant woman in an enduring family relationship (including same-sex couples) but is not a relative of that woman
- the father of the expected child
- a woman who is deemed to be the parent of the expected child under the Human Fertilisation and Embryology Act 2008
- either of the intended parents who are expecting a child from a surrogate mother and who are eligible for and intend to apply for a Parental Order (or have obtained such an Order)
The time off for each appointment is capped at 6.5 hours (which includes travelling and waiting time).
Spouse or civil partner
Although the regulations state that a person is in a qualifying relationship with a pregnant woman if he or she is the husband or civil partner of that woman, it is presumably the case that this category would also extend to the wife of the pregnant woman. Paragraph 7.1 of Part 2 of the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019, provides that any reference in legislation to a person who is married is to be read as including a reference to a person who is married to a person of the same sex.
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Pregnant workers, dismissal and discrimination
How employers can ensure they stay on the right side of sex discrimination law and appropriately support pregnant workers.
You must not treat a worker unfairly because she is pregnant. This may result in a claim of sex discrimination. Such unfair treatment includes dismissal.
Pregnancy and dismissal
It is an automatically unfair dismissal if you dismiss - or select for redundancy - an employee solely or mainly:
- for a reason relating to her pregnancy
- because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
Only employees can claim unfair dismissal, but all workers can claim unlawful sex discrimination if they are dismissed or treated unreasonably for a reason relating to their pregnancy.
Sex discrimination
It amounts to unlawful sex discrimination if you:
- treat a pregnant worker unfairly for a reason relating to her pregnancy
- dismiss a pregnant worker solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
- refuse to interview or employ a job applicant solely or mainly on the grounds that she is pregnant (or you believe that she may be, or may become, pregnant)
You can never justify this type of discrimination.
As pregnancy-related dismissals are discriminatory, it's likely that a pregnant employee would not only claim unfair dismissal but also unlawful sex discrimination. There is a limit on the amount of compensation a tribunal can award for unfair dismissal but not for unlawful discrimination.
A pregnant worker would only be able to claim unlawful sex discrimination, but there is still no limit on any tribunal compensation they might receive.
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Breastfeeding and the workplace
How employers can support employees to continue breastfeeding on their return to work after maternity leave.
There are business benefits for employers who take proactive steps to discuss and promote breastfeeding with employees returning from maternity leave to help facilitate their transition back to work.
Business benefits
- Increased motivation of employees and a better working culture, leading to greater flexibility and better communication.
- Health and wellbeing benefits to your employees.
- Reduction in absenteeism and staff turnover.
- Increased quality, greater levels of innovation and creativity, and improved productivity.
- Overall improved customer service.
- Raised public image of the company and competitive advantage, making it more attractive as an employer of choice.
- Contributes to an inclusive working culture.
Breastfeeding and rest periods
Employers are required by law to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down.
Although there is no legal right for an employee to take time off from their job in order to breastfeed, express milk for storage and later use, or take rest periods you should consider adapting working hours to enable an employee to continue to breastfeed or express milk. A refusal to adapt working hours could be indirect sex discrimination unless the employer can show the refusal is justified by the needs of the business.
Breastfeeding facilities
Employers are legally required to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down. Employers should consider providing a private, healthy and safe environment for employees to express and store milk, for example, it is not suitable for new mothers to use toilets for expressing milk.
Breastfeeding workplace policy
It is good practice to have a written workplace policy on breastfeeding clearly outlining the employer and employee's responsibilities. This will provide clarity around how requests can be made and will be considered by the employer. This will assist you in making objective, correct, and fair decisions. Implementing such a workplace policy demonstrates your principles and commitment as an employer to supporting employees who are breastfeeding to help create a positive and inclusive workplace where discrimination in any form is unacceptable and will not be tolerated.
Workplace health and safety for breastfeeding employees
There may be a number of risk factors in the workplace that may be harmful to a breastfeeding employee or her child’s health. You should take steps to identify these risks and consider how you can remove them for the safety of your employees.
For further information, see health and safety of pregnant workers.
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Supporting an employee who has had a miscarriage or stillbirth
How employers can provide practical and compassionate support to staff following a miscarriage or stillbirth.
Employers should provide support and guidance to staff who experience a stillbirth or miscarriage during their pregnancy by implementing clear policies, compassionate communication, and practical assistance tailored to individual needs.
What is a miscarriage and what is a stillbirth?
According to the Miscarriage Association, the definition of a miscarriage is when a baby (or fetus or embryo) dies in the uterus during pregnancy. In the UK, that definition applies to pregnancies up to 23 weeks and 6 days. Any loss from 24 weeks is called a stillbirth.
Read further information on miscarriages.
Workplace policies that address pregnancy and baby loss
Ensure any workplace policies on pregnancy and maternity address and recognise pregnancy and baby loss as an important workplace wellbeing issue. You could consider developing a workplace policy that deals specifically with pregnancy and baby loss.
Regularly update policy documents and staff handbooks that address pregnancy in the workplace to reflect changes in the law and highlight available support services. Make sure these policies are easily accessible to all your staff.
See guidance, including a downloadable template, for a miscarriage policy.
Provide bereavement training
Equip managers to support people with empathy and understanding by providing appropriate training on how to respond compassionately and effectively to bereavement, avoid assumptions about readiness to return to work, and offer options without pressure.
Make staff aware of their rights
Miscarriage and maternity leave
If a miscarriage occurs before the end of the 24th week of pregnancy, the employee will not qualify for maternity leave. She could take some time off work on sick leave, or you could allow them to take compassionate/special leave (paid/unpaid), or annual leave. In circumstances where access to an Employee Assistance Programme is available, you may refer her to this and/or other support services.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks, and the child does not survive, the father (or the mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Stillbirth and maternity leave
If your employee gives birth to a stillborn baby, she is still entitled to maternity leave and maternity pay, if eligible, if the birth happens after 24 weeks of pregnancy.
Stillbirth and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
When a baby dies
If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to maternity leave. The employee’s partner is also entitled to paternity leave.
See the right to maternity leave and the right to paternity leave - births.
Parental Bereavement Leave and Pay
An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) has either a child who has died under 18 years old or had a stillbirth after 24 weeks of pregnancy.
Bereaved parents are also entitled to up to two weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period.
See Parental Bereavement Leave and Pay.
Supportive assistance
Make staff aware of and encourage the use of support resources, such as Employee Assistance Programmes, occupational health services, or workplace counselling, where available. Refer staff to specialist organisations and charities for information and emotional support, including the Miscarriage Association, Tommy’s, and SANDS, which offer toolkits, helplines, and staff training.
See talking about miscarriage in the workplace: a guide for employers and managers.
Helping the employee return to work
Provide return-to-work planning support, including reasonable adjustments or extended leave if needed. Allow flexible working, such as remote working, reduced hours, or phased returns to work following pregnancy and baby loss.
Emphasise confidentiality and ensure any health-related information is treated sensitively.
See returning to work after pregnancy and baby loss.
By creating and maintaining an open and empathetic workplace culture, making practical accommodations, and ensuring policies are clear and accessible, employers can make a significant positive difference for staff members coping with the loss of a pregnancy, baby or child.
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Fertility treatment and the workplace
How employers can support employees undergoing fertility treatment.
A woman undergoing fertility treatment, such as in vitro fertilisation (IVF), is treated as being pregnant after fertilised eggs have been implanted. If the implementation fails, the protected period, during which a woman must not be treated unfavourably on the grounds of her pregnancy, ends two weeks later.
It is unlawful sex discrimination for employers to treat a woman less favourably because she is undergoing fertility treatment or intends to become pregnant. A woman will be entitled to paid time off for antenatal care only after the fertilised embryo has been implanted. See having a child through IVF.
Supporting employees going through fertility treatment
For employees undertaking fertility treatment, it can be a long and difficult road both emotionally and physically. There will be obvious practicalities of medical appointments, getting used to new medications, and perhaps undergoing medical procedures. Employer understanding, support, and flexibility can often make a significant difference to someone at a difficult and potentially challenging time of their life. It's not just women who may require support, their partner may also require support and understanding in their difficult journey through fertility treatment.
Due to the personal nature of fertility treatment, employers should recognise and respect that employees have a right to privacy and may choose not to ask for support and may wish for the matter to remain confidential. However, developing a compassionate culture with explicit support for employees going through fertility treatment can help overcome their fear of judgement or discrimination and encourage individuals to access the support they need.
Having a clear workplace fertility policy in place which tells people about the support the employer can offer, might go some way to breaking down the barriers, provided they feel their employer can be trusted to treat them fairly and they won't be penalised in some way. Raising awareness of fertility treatment amongst your workforce and equipping line managers on what to say and how to offer support through appropriate education and training can also help employees open up and feel comfortable asking for help. For further guidance, see support staff facing fertility challenges.
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