Premature babies and maternity leave: what’s the legal position?

Mothers of premature babies are campaigning for statutory maternity leave to be extended where mothers give birth early. Stephen Simpson explains the current legal position, and how the law might be changed.

The “Smallest Things” campaign is seeking one extra week’s leave for every week parents of premature children have to spend waiting for their child to be allowed home from hospital.

The online campaign has more than 100,000 signatures in support of a change to the law.

On Wednesday 26 October 2016, Labour MP Steve Reed is making a motion in Parliament for a full debate on potential changes to the law on maternity leave to take account of premature births.

He is proposing the introduction into Parliament of a Maternity and Paternity Leave (Premature Birth) Bill.

What is the current legal position, and how could the law be changed to take account of premature births?

Birth triggers maternity leave

If a baby is born early and maternity leave has not already commenced, the mother’s maternity leave starts on the day after her baby was born.

An employee’s maternity leave will also be triggered if she is absent from work for a pregnancy-related reason in the four-week period before her expected week of childbirth (EWC).

Mothers are entitled to 52 weeks’ leave, made up of 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave.

There is currently no mechanism in maternity leave laws for leave to last longer where babies are born prematurely.

New mother must inform her employer of early birth

Even where a birth is premature, the new mother must notify her employer as soon as reasonably practicable:

• that she has given birth early; and
• the date on which her baby was born.

While employers should act sensitively, it is important that they have this information to determine the employee’s maternity leave dates.

Employer should recalculate maternity leave end date

It is likely that the employer and new mother will already have discussed when maternity leave will begin and end, based on the employee’s EWC.

However, an early birth triggers the start of maternity leave. As statutory maternity leave is set at 52 weeks, this means that the end of the employee’s maternity leave is brought forward.

Once the employer has received notice of the early birth, it has 28 days to communicate to the mother the new end date of her additional maternity leave.

Possible changes to maternity leave: two options?

Two options for changes to statutory maternity leave to take account of premature births have been put forward:

• The Smallest Things campaign suggests the introduction of one extra week’s leave for every week parents of premature children have to spend waiting in hospital for their child to be allowed home.
• Another option put forward by Bliss, a charity for babies born prematurely or sick, is that new mothers who gives birth early could be guaranteed 12 months’ leave starting from their original EWC.

Is a change to maternity leave laws likely?

While amendments to the law would be relatively straightforward, it appears unlikely that employers will face a requirement in the near future to provide extra leave for premature births.

Private Members’ Bills rarely get enacted, and a spokesman for the Department for Business, Energy & Industrial Strategy has told the BBC that: “The UK’s maternity system is one of the most generous in the world. The current system strikes the right balance between the needs of new mums, including those whose baby has been born prematurely, and employers.”

Whatever the legal position, employer support is essential

Employers should bear in mind that a premature birth is one of the most stressful events that a new parent can face and there are steps that they can take to support employees in this situation.

When a new mother gives birth early, line managers should be encouraged to strike the difficult balance between:

• keeping in touch with the employee to provide support (for example, via an employee assistance programme) and discussing the impact on maternity leave; and
• recognising when parents may want to be left to their own devices during this difficult period.

A key way in which employers can support employees with a premature child is to allow flexible working once maternity leave ends.

Premature births and maternity leave: key facts from the campaign

• One baby in eight is born prematurely (prior to 37 weeks’ gestation).
• Babies are likely to remain in hospital until their due date following premature birth.
• There are no facilities in neonatal intensive care units (NICUs) for parents to stay with their babies overnight.
• 40% of NICU mothers experience post-natal depression, compared with 5% to 10% of mothers who have full-term deliveries.
• More than 50% of mothers report symptoms of anxiety and post-traumatic stress disorder following NICU treatment.
• 60% of mothers feel that their maternity leave is too short following premature birth.
• Babies born prematurely develop according to their “corrected age”, which is calculated on their due date rather than their birth date.
• Babies born prematurely are more vulnerable to common cold and cough viruses, with many experiencing readmissions to hospital.

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Source: The Smallest Things…campaigning for premature babies and beyond.