MATERNITY - 13.10.2020

Pregnancy loss and statutory maternity pay

An employee has notified you that she’s suffered a loss of pregnancy, a situation that must be handled sensitively. Is she entitled to take any maternity leave and receive statutory maternity pay (SMP)?

Miscarriage and stillbirth

In the UK, 25% of pregnancies end in miscarriage and 1% of women experience recurrent miscarriages (three or more in a row). The rights that an employee has following a pregnancy loss will depend on the stage of her pregnancy and how the pregnancy ends.

Legal distinctions

Importantly, where a baby is born alive at any point during the mother’s pregnancy, even if the baby is alive only for one second, the employee is entitled to all of her maternity rights. These depend on how long she has been employed.

Maternity leave is a day one employment right, whereas the receipt of statutory maternity pay (SMP) is subject to eligibility criteria.

Before 24 weeks

Where a baby is born dead before the 24th week of pregnancy, it is called a “miscarriage”. Employees who suffer a miscarriage aren’t to entitled to any maternity leave or SMP.

Any time off the employee needs will be sick leave and she can self-certify for the first seven days. Pay rights are governed by the employment contract, but you could grant discretionary full pay.

All sick leave that is pregnancy-related must be disregarded for absence and sickness management purposes.

Note. You must also not dismiss an employee, or subject her to any detriment, because she has taken time off for pregnancy-related reasons.

Stillbirth situations

Where a baby is born dead after the beginning of the 24th week of pregnancy it is called a “stillbirth” and the employee will be given a certificate of stillbirth which can be used for SMP purposes. If she’s not already on maternity leave, the employee’s maternity leave automatically starts the day after the birth. She will be entitled to SMP too if she meets the eligibility conditions.

SMP eligibility

To be eligible for SMP, the employee must have been continuously employed for 26 weeks prior to the “qualifying week”, which is the 15th week before the expected week of childbirth (EWC).

Her average weekly earnings over the period of eight weeks ending with the qualifying week must not be less than the lower earnings limit for National Insurance purposes.

Tip. An employee who suffers a stillbirth may take a full year’s maternity leave. If she wishes to return to work earlier than the end of her maternity leave, she can do so but must give you at least eight weeks’ advance notice of her intended early return date.

Tip. You don’t have to ask the employee what week of pregnancy she was in. The date of her EWC will be stated on her MAT B1 form . Use this to calculate which week of pregnancy she was in and then write to her sensitively setting out her rights. You can use our letter (see The next step ).

For a rights following pregnancy loss letter, visit https://www.tips-and-advice.co.uk , Download Zone, year 22, issue 18.

If the pregnancy loss occurred before the 24th week of pregnancy, there is no right to maternity leave or SMP. From the 24th week of pregnancy, the employee is entitled to take her full maternity leave and receive SMP if she is eligible for it. The same applies when a baby is born alive at any point during a pregnancy but later dies.

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