Miscarriage, stillbirth and the death of a baby

New law in force

The Equality Act came into force on 1 October 10. Some of the information on this page may be out of date.

Miscarriage

A miscarriage is where a baby is born dead before the end of the 24th week of pregnancy.

An employee who suffers a miscarriage does not have the right to Ordinary Maternity Leave, Additional Maternity Leave or Statutory Maternity Pay.

You should record any sick leave taken by an employee that is related to the pregnancy or miscarriage 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.

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Stillbirth

Stillbirth is where a baby is born dead during or after the 25th week of pregnancy.

Any employee whose baby is stillborn is entitled to Ordinary Maternity Leave and Additional Maternity Leave.

An employee whose baby is stillborn will also be entitled to Statutory Maternity Pay provided she satisfies the relevant eligibility criteria. If the baby is stillborn before the end of the qualifying week, the period over which the employee’s earnings are averaged for Statutory Maternity Pay calculation purposes will be the eight weeks up to the last payday before the week in which the baby was stillborn.

If an employee’s baby is stillborn while she is on maternity leave and receiving Statutory Maternity Pay, no action needs to be taken by the employee and her entitlements continue as before the stillbirth.

If the baby is stillborn before the employee has started her maternity leave or Statutory Maternity Pay, special notification rules apply. The employee must notify you as soon as practicable after the birth that she has given birth and the date of the stillbirth. The notice must be in writing if requested. To claim Statutory Maternity Pay, the employee must also provide you with medical evidence of the EWC (usually in the form of the MAT B1 certificate) and evidence of the date the baby was stillborn.

If the employee has already given notice for her Statutory Maternity Pay to start but it is to start early because of the stillbirth, she must also let you know (in writing if you request it) the date her absence began.

Notice for Statutory Maternity Pay must be given within 21 days of the stillbirth or as soon as reasonably practicable. The Statutory Maternity Pay period will start on the day following the date of the stillbirth.

Maternity leave will start on the day after the date of stillbirth.

More information on Ordinary Maternity Leave, Additional Maternity Leave and Statutory Maternity Pay can be found in the Maternity Leave and Pay section of this toolkit.

On returning to work after maternity leave, the employee is entitled to the health and safety protection which applies to all women. For more information refer to the Health and safety section of this toolkit.

Statutory Paternity Leave and Statutory Paternity Pay is available where a baby is stillborn. See the Paternity leave and pay section of this toolkit for more information.

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The death of a baby

If an employee’s baby is born alive but dies soon afterwards, that will be classed as a live birth. Provided the employee satisfies the relevant eligibility criteria, she will be entitled to Ordinary Maternity Leave, Additional Maternity Leave and Statutory Maternity Pay.

For more information, including details of the procedure to be followed if the baby is born prematurely, refer to the Maternity Leave and Pay section of this toolkit.

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Relevant legislation

  • Maternity and Parental Leave etc Regulations 1999
  • Employment Rights Act 1996
  • Employment Act 2002
  • Sex Discrimination Act 1975
  • Social Security Contributions and Benefits Act 1992
  • Statutory Maternity Pay (General) Regulations 1986

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.

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