Returning to work after any period of leave can be a big adjustment in itself, but for those who have suffered from a birth injury during labour, the transition can be an emotional and physical journey.
Welcoming an employee back to work following a birth injury to either themselves or their baby can be a sensitive and unknown territory for some employers. It is important that businesses are aware of the rights of pregnant women and those returning, and to be conscious that the return will not always be following a healthy pregnancy or birth.
If things go wrong
No two pregnancies and births will be the same and issues can arise at any time. In circumstances where the baby or the employee suffers an injury during the birth, the consequences can be devastating and may ripple through every aspect of the new mum’s life – including her employment.
While many employers will offer support and be empathetic to the situation, it can be uncomfortable because they do not want to say or do the wrong thing, nor do they want to appear dismissive and uncaring.
What can an employer do?
Employers should talk to the employee – not ignore them. Keep in touch during the maternity leave because, when they do return, there will be familiarity (but be careful not to smother them). Consider putting a ‘buddy’ in place – someone who the employee can speak to before her return about any fears or concerns.
The buddy can keep the employee informed of any developments or changes within the business during their absence so that, when they do return, they know what to expect. When the employee returns to work, keep the buddy on board. It will help ease her in and will be a source of support.
Injury to the baby
An injury to the baby may be immediately apparent or, in some cases, there can be a delayed diagnosis when perhaps the baby is not developing as quickly as expected.
If the employee decides to return to work, she may make a flexible working request. This could include reducing her hours, changing her days of work or remote working. Employers should carefully consider the request and, if feasible, make changes. While employers do not have to make any changes, they could be at risk of discrimination claims if they refuse.
Further, the employee may request parental leave. This leave is unpaid and provides for 18 weeks to be taken by the child’s 18th birthday. The maximum time in any one year is four weeks.
Injury to mum
During childbirth, the mother can sustain an injury. The level of injury may be short or long term physically, but emotionally the effects can be long lasting.
The employee may make a flexible working request. She may have an increased level of sickness absence. The employer can consider topping up her pay if she would otherwise only be entitled to statutory sick pay, and could treat any sickness absence as a form of pregnancy-related sickness absence and not include it should there be a redundancy situation, for example.
Where the injury has had a profound effect on the employee, the employer may want to consider offering a period of unpaid leave or, depending on the role and feasibility, a career break or short sabbatical.
Other matters to consider
Early on, employers can support pregnant employees by encouraging them to attend antenatal appointments where early issues and complications may be detected, leading to early intervention.
Miscarriages (before 24 weeks) will not give rise to maternity leave or pay but the employee will still have to deal with the loss and may need to go through a grieving process. The employee may take a period of sick leave, but employers may want to consider ‘topping up’ the pay (if there is no policy in place) and allowing the employee to take some compassionate leave or paid leave.
Employers should also be mindful of events that could trigger maternity leave and pay but in some very sad and distressing ways. For example, premature babies could also require intense hospital treatment (and the child may need long-term medical care), where the baby is stillborn after 24 weeks’ gestation, or where the baby is born but passes away shortly after the birth (neonatal death).
All of these can be life-changing events. For women who have been through trauma, the idea of returning to work may be daunting and come with physical and emotional complications. Ultimately, employers should treat a birth injury with sensitivity and confidentiality.
Joanne Wright is an employment lawyer at Hudgell Solicitors