Anna Brown gets legal guidance this week from Sarah Bird, employment law expert at Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on whether maternity leave should be granted where an employee sadly has a stillborn child.
The question:
I have an employee who very sadly gave birth to a stillborn baby at 29 weeks. I believe she is still entitled to Ordinary Maternity Leave and pay but is she also entitled to Additional Maternity Leave?
Ordinarily she would have qualified for AML but I’m not sure if this still applies in these circumstances?
The answers:
Sarah Bird, employment law expert, Browne Jacobson
In this situation, you are correct in that the employee is still entitled to take ordinary maternity leave and receive statutory maternity pay. Her period of ordinary maternity leave automatically began the day following childbirth even though it was sadly a stillbirth.
This situation does not affect the employee’s entitlement to take additional maternity leave either, however in this circumstance her plans may now have changed and as appropriate I would suggest arranging to meet with her to discuss this.
The employee has the automatic right to come back to work following the end of the additional maternity leave period and is not required to inform you of her intention to return. If she wishes to return to work before the end of her full entitlement to additional maternity leave she must provide you with at least 28 days’ written notice of the date on which she intends to return. If she does not do so you can postpone her return to a date that will ensure that the full 28-day notice period has been given but not beyond the end of her full entitlement.
Sarah can be contacted at: sbird@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
The employee is entitled to AML if she meets the qualifying conditions: that is that she has been continuously employed for not less than 26 weeks at the beginning of the 14th week before the EWC.
The EWC is the the week beginning with midnight between Saturday and Sunday, in which it is expected that the child will be born (or in this case would have been born).
The Regulations state that if childbirth occurs before the OML period would otherwise commence, maternity leave begins on the day after the birth. Childbirth means the birth of a living or dead child after 24 weeks of pregnancy.
Thus a woman who suffers a stillbirth after 24 weeks of pregnancy will automatically begin her OML and since the contract subsists during OML, the woman will be in employment at the 14th week before what was the EWC and she will, therefore be entitled to AML.
Martin can be contacted at: martin.brewer@mills-reeve.com
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