Time off after a miscarriage wasn't treated as 'pregnancy related'

[notveryimpressed]

Hi, I'm new but have been told you're good so I'm hoping someone can advise me.

I work for a huge retailer. In July this year I suffered a miscarriage that dragged on for some weeks and I was off for 6 weeks in total. The first sickness cert I had from the hospital was for 2 weeks, and said miscarriage on it. The second was done by my gp, as I hadn't recovered physically and was in a lot of emotional distress, this also lasted 2 weeks. He put depression on it. During this two weeks, I was still undergoing investigations and treatment with the hospital as my miscarriage wasn't complete. I was signed off for a further two weeks, the certificate stating 'post hospitalisation complications'. It was a truly awful time.

On returning to work, I was told that only the first two weeks was classed as pregnancy related and that the next four were counted towards my absence record and I'd hit a 'trigger' as it was a different illness. Surely they can see the fact I was depressed was a direct result of the miscarriage, especially as the third certificate was relating to the further treatment I'd had?

I later challenged the decision to trigger me, informally with my line manager. I'd had some informal advice from an HR friend working for a different company. My HR department insisted it was correct, but my line manager, as a 'favour' put a note on my record to say it wasn't to be counted, although this was a one off because she likes me and she couldn't do it again.

I've just had a half year review and was told that my absence affected my performance rating as it 'hadn't done me any favours'.

Am I right to think this isn't good enough? What about other women this could affect? My beef isn't with my boss, but the HR department who've made these decisions. Do I have a case of discrimination here?

Thanks in advance.

[righty]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Almost certainly and more

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Hi, and just to say how sorry I am to hear of your loss.
When one of my daughters miscarried some while ago and had similar problems we discovered many companies consider this situation as "pregnancy related sickness" (depending on how far your pregnancy has progressed) and don't record it on the absence record.
However others record it, but like your company make a note about it.
Some regard this sort of absence as normal sickness absence.
I don't believe there is any hard and fast rule.

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Here's a link which fairly sets out the position from an employers point of view which you might find useful:http://www.personneltoday.com/hr/how...s-after-birth/

[notveryimpressed]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Thanks Des, but as I've since found out, under the equality act 2010, time off after a miscarriage should be treated as pregnancy related. ACAS are involved and if an agreement isn't reached soon, I will be taking them to a tribunal. Got a strong case for it apparently.

[teaboy2]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Thanks Des, but as I've since found out, under the equality act 2010, time off after a miscarriage should be treated as pregnancy related. ACAS are involved and if an agreement isn't reached soon, I will be taking them to a tribunal. Got a strong case for it apparently.

You are 100% spot on:

(1)This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.

(2)A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably —

(a)because of the pregnancy, or

(b)because of illness suffered by her as a result of it.

Treatment for Miscarriage falls under "illness suffered" as a result of pregnancy! Protected period in which you can not be treated unfavorably lasts not just till the end of the pregnancy (birth or end of miscarriage) but also to the end of treatment for illness suffered by them as a result of the pregnancy, which ever is the latter of the two! So pregnancy related illness is covered and she can not be discriminated against because of it, nor can employers treat it as not being pregnancy related as doing so is discrimination!

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

But the ACT goes on to say at Part 2 18 (6) that the protected period ends two weeks after the end of the pregnancy, so illness after that time can be treated by employers under their normal rules. One would hope they would be more understanding.


The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends—

(a)

if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy;

(b)

if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy

[notveryimpressed]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Thanks Teaboy2, this is what my adviser has told me. Time off after as miscarriage is also mentioned specifically in the European Human Rights Commission which says "time off after a miscarriage should be treated as pregnancy related".

[notveryimpressed]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Des, so because my miscarriage & the treatment for it was lengthy, I should be put at a disadvantage in comparison to other female employees who have also suffered a miscarriage? That's kind of missing the point of 'equality'. I was getting positive pregnancy tests for some weeks. In effect, you could argue that I was still 'pregnant' up until the point my treatment finished & pregnancy tests were negative. In which case, according to the two week period, I was still in the protected period when I returned to work. Either way, my adviser is confident I have a strong case and Acas are currently in discussion with my employer and myself in the hope of resolving it without going to a tribunal. I don't really want to, but will if I have to.

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

I regret I must disagree.
The Act specifically states (as quoted above) that the protected period only lasts for two weeks after the ending of the pregnancy.

I do feel for you and hope things work out, but to avoid more stress at least bring to your advisor's attention Part 2 18 (6) of the Equality Act 2010

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

My last post crossed with yours.
Truly, I do hope your advisers are correct.
Although you were getting positive results on pregnancy tests, are any doctors willing to confirm you were actually pregnant?
I agree that it is not "fair" or "equal", but sometimes ?often the law is like that.
The fact that your employers are talking to ACAS with a view to avoiding a tribunal bodes well, and I trust you reach a non stressful result.

[teaboy2]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Des - OP was still pregnant up too a date within the last 2 weeks she had off, as pregnancy didn't end till her miscarriage ended during those last to weeks she had off.

"I was still undergoing investigations and treatment with the hospital as my miscarriage wasn't complete. I was signed off for a further two weeks, the certificate stating 'post hospitalisation complications'. It was a truly awful time." - Last two weeks she was signed off for.

So as the protected period doesn't end till 2 weeks after end of pregnancy, and as her pregnancy ended within the last 2 weeks she was off work, she is still in the protected period! So none of those 6 weeks let alone 4 of them can be lawfully classed as normal absence as they all within the protected period!

[des8]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

I feel I must apologise to OP, because I do realise the mental anguish (and physical pain) that she is suffering, and I do not want to exacerbate this by open forum discussion


Really the problem here is ascertaining when the pregnancy ended.
My understanding is that when the foetus is born (either at full term or earlier) the pregnancy has completed.
Complications can arise in early births (miscarriage) with problems expelling detritus, but the pregnancy has ended.

Illness following difficulties in pregnancy only fall under the Equality Act for two weeks following the ending of the pregnancy

Here (http://www.acas.org.uk/index.aspx?articleid=4854) is the ACAS article:

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What happens when a pregnancy-related illness extends beyond the protected period?

Women are protected in equality legislation from being treated unfavourably because of their pregnancy or illnesses related to their pregnancy.
Protected period

This applies within a 'protected period' starting from the beginning of pregnancy and stopping at the end of maternity leave, or when they have returned to work.
For women without the right to maternity leave, the protected period stops 'at the end of the period of two weeks beginning with the end of the pregnancy'.
But what happens if a pregnancy-related illness continues beyond the end of this protected period, and a woman is treated unfavourably because of it?
Long-term post-natal depression

Such a situation was the subject of a recent discrimination claim when a women suffering from long-term post-natal depression wasn't able to return to work after her maternity leave ended, and was dismissed by her employer several months later.
Both the employment tribunal and then the Employment Appeal Tribunal (EAT) dismissed the discrimination claim. They said that the unfavourable treatment - the dismissal - had happened outside of the protected period.
The EAT referred to a European Court of Justice ruling that said that after the protected period had finished the employer was permitted to treat a pregnancy-related illness from that point in the same way as a man's illness 'in computing any period of absence justifying dismissal'.
It went on to say that if Parliament had intended to extend the protection relating to pregnancy or maternity, the necessary provisions would have been made within the Equality Act 2010.


As I said earlier, it is good that the employer is talking to ACAS, because the OP doesn't need the stress of a tribunal.
If the employer had been more understanding from the beginning all of this could have been avoided.
One has to wonder how human are Human Resources.

[Fightforfairness]

Re: Time off after a miscarriage wasn't treated as 'pregnancy related'

Ah wow I can't believe it's taken me this long to find this forum and this specific post online as I have been going through something similar since Feb 15 and it's unusual to find these stories that are recent. OP I'm so sorry for your loss and complications. I also suffered a mc in feb and had 2 weeks off and that's when I found out it is treated as pregnancy related. I discovered my work had a policy for only treating it as such for 2 weeks from the date of the end of pregnancy and I was pretty enraged until I read up on employment law and the protected period and it made sense. However my issue is that it is marked up as such on my sickness record so it doesn't get included in attendance management BUT this entire record does get submitted with internal job applications. I tried to fight my pregnancy related sickness being on there but was told it's policy. I applied for a suitable job and didn't even get shortlisted for interview. I'm still awaiting my feedback but convinced my sickness record will have had an influence and I will never be able to prove it. However, I today found out about section 60 of the equality act which states employers can't ask any applicant about their sickness (pregnancy or not) until an offer of a job is made. Weirdly my employer specifically states that volunteers and agency staff don't have to supply this because of section 60 so it's not clear why other staff do. I raised a complaint against hr today about some incorrect info I was given in relation to all this and they have just tried to tell me that traditionally mc isn't viewed as pregnancy related because the woman is no longer pregnant and they introduced the 2 week thing to be nice - they clearly have no understanding of employment law or protected periods! Anyway OP I just wanted to say how refreshing it is to see in writing that someone else has made the argument about "when does pregnancy end" because I have been making this for months (the 2 week rule didn't affect me as I was within it but I hate unfairness) and it completely stumped my employer. They obviously have no understanding and see it as a one date thing because they kept referring to the "miscarriage" ie the date I first reported sick rather than the date of the end of the pregnancy - like you I still had positive tests and an incomplete mc 10 days later. Citizens advice confirmed it is from when you are no longer medically pregnant and I think this would stand up in court. I hope you have managed to find a resolution :-)

[AlexJNorton]

Oh, guys. It goes without saying, that women need some time to straighten her out, because lost of the child breaks you. Moreover, it breaks you, when the pregnant was going OK, I mean, that the woman made all the analysis, kept the diet, made the exercise, drank the vitamins, and anyway, the miscarriage happened. Maybe I'll say the thing, that a lot of people won't like, but the women, who smoke during the pregnancy, kill their children. I have understood it after reading the article "smoking during pregnancy". How do you think?