A miscarriage is where a pregnancy ends before the end of the 24th week and there was no live birth.
There is currently no legal right to time off and pay for an employee who suffers a miscarriage.
An employee is entitled to take sick leave following a miscarriage if she is not well enough to come to work and should follow normal sickness reporting procedures.
An employee is entitled to any sick pay provided by the employer under their sickness absence policy. If no contractual sick pay is provided by the employer, the employee may qualify for Statutory Sick Pay.
Any sick leave taken by an employee that is related to the pregnancy or miscarriage should be recorded by an employer separately from any other type of sick leave so that it is not used to the detriment of the employee. It should not be used in disciplinary or redundancy decisions.
Protection for employees
An employee is protected against pregnancy discrimination for two weeks after the end of the pregnancy.
After the two week protected period, if an employee suffers a detriment or is dismissed as a result of a miscarriage, for example, if miscarriage-related sickness absence is taken into account in disciplinary or redundancy decisions, a woman may be able to claim sex discrimination if s/he has been treated less favourably than a man in similar circumstances or vice versa or she may be able to claim indirect sex discrimination if a policy, practice or criterion disadvantages more women than men or vice versa.
Employees can make a flexible work request if they wish to change their days, hours or place or work, for example, part-time or home-working or a combination of changes, following a miscarriage. Flexible work requests can be agreed on a temporary or permanent basis and should be considered as set out in the Flexible Working Policy.
If an employee’s baby was born alive but died after birth, this will be considered a live birth and neonatal death regardless of how long the pregnancy lasted. An employee will be entitled to maternity leave and any maternity pay she qualifies for following a live birth. See: Stillbirth, neonatal death and parental bereavement leave
End of the 24th week of pregnancy
If an employee’s baby was delivered after the end of the 24th week of pregnancy but was not born alive, this is considered a stillbirth and the employee is entitled to maternity leave and any maternity pay that she qualifies for. See: Stillbirth, neonatal death and parental bereavement leave
In order to qualify for Statutory Maternity Pay, an employee must provide a MATB1 maternity certificate stating her due date. The end of the 24th week of pregnancy for entitlement to maternity leave and pay is calculated by counting back 16 weeks from the Sunday at the start of the expected week of childbirth.
Best practice: Time off following a miscarriage
It is good practice to consider whether you can offer x days full or half pay for time off following a miscarriage.
You can find a Statutory Sick Pay calculator here.
Statutory Sick Pay (General) Regulations 1982
Employment Rights Act 1996
Maternity and Parental Leave etc Regulations 1999
Equality Act 2010
Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.