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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 77892
Experience:  Qualified Solicitor
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I have a question regarding maternity leave and eights

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Hi I have a question regarding maternity leave and eights *rights
JA: Where are you? It matters because laws vary by location.
Customer: West Sussex
JA: What steps have you taken so far?
Customer: Nothing yet because I need more info
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: my situation:
Hello, I’m Ben, a solicitor, and it’s my pleasure to assist you. I may ask for some preliminary information to help me determine the legal position.

I see you have already mentioned that you wanted to know about maternity leave. However, I would be grateful if you could please provide some more details of your circumstances to enable me to understand your situation better. I also wanted to make you aware that this is not always an instant service, due to various legal engagements I could have and I may not be able to reply immediately. However, rest assured that I am dealing with your query and will get back to you as soon as I can. Thanks.

Customer: replied 15 days ago.
I gave birth at 23rd week of pregnancy. The baby was born alive but dead shortly after.Based on multiple resources, this is considered neonatal death. And in case of neonatal death, full maternity rights should be entitled.I had a call with a legal advisor last week and she has confirmed that with neonatal death, it could be at any gestation to qualify as this is different than stillbirth or miscarriage.However, my employee got back to me and said I wouldn’t be eligible as this happened befor 24th week of pregnancy. Under section 2 of maternity leave regulation, it does say that childbirth is defined for birth of a child, alive or dead, on or after 24th week of pregnancy.But I’m extremely confused because as you can Google this info, they all state that neonatal birth is entitled maternity leave.
Customer: replied 15 days ago.
8220; The rules state that only parents whose baby is born dead after 24 completed weeks of pregnancy or whose baby is born alive at any gestation but who dies shortly after birth are entitled to maternity and paternity rights and benefits. ” -healthtalk.orgWhere can I find this rule?
Customer: replied 15 days ago.
Could you please look into this asap?
Customer: replied 15 days ago.
8220; If you have a stillbirth, or if your baby is born alive but later dies, even after a few seconds (and even if this takes place before the 24th week of pregnancy), you are entitled to all your maternity rights.” - Working Families
Customer: replied 15 days ago.
It would be helpful if you can point out under which regulation this is true.

please provide links to the sources where they state that neonatal birth prior to 24 weeks provides you with maternity rights

Customer: replied 15 days ago.
https://maternityaction.org.uk/advice/miscarriage-stillbirth-and-neonatal-death-rights-to-time-off-and-pay-for-parents/
Customer: replied 15 days ago.
https://www.tommys.org/baby-loss-support/neonatal-death-information-and-support/rights-and-benefits-after-neonatal-death
Customer: replied 15 days ago.
https://healthtalk.org/losing-baby-20-24-weeks-pregnancy/going-back-to-work-after-losing-a-baby-before-24-weeks
Customer: replied 15 days ago.
I would like to know the actual rule stated under regulations so that I can point that to my employee
Customer: replied 15 days ago.
https://www.gov.uk/after-a-death/if-a-child-or-baby-dies
Customer: replied 15 days ago.
These are all I have for now
Customer: replied 15 days ago.
I seriously doubt that all these maternity related websites are providing incorrect information regarding neonatal birth but my employee is going by section 2.
Customer: replied 15 days ago.
https://www.legislation.gov.uk/uksi/1999/3312/regulation/2/made
Customer: replied 15 days ago.
I’d also like to know potential legal consequences (for both employer and employee) of returning to work, not being offered a maternity leave because of what they said, then later for sure finding out that I should have been entitled.

Thank you. First of all, I am sorry to hear about the issues brought up by this. It must be a frustrating situation to be going through.

The answer lies in the link you provided above, specifically the definitions part of The Maternity and Parental Leave etc. Regulations 1999.

It defines ‘childbirth’ as “the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy” (I have underlined the relevant part above).

As you can see, as soon as a living child is born, then that satisfies the definition of childbirth and the 24 weeks is no longer relevant (which only applies if the child was stillborn).

If your child was born alive, then it has satisfied the definition of childbirth, which you can then go on to apply together with the rights further on in the Regulations.

For example, in Reg 6:

https://www.legislation.gov.uk/uksi/1999/3312/regulation/6/made

(2) Where the employee’s ordinary maternity leave period has not commenced by virtue of paragraph (1) when childbirth occurs, her ordinary maternity leave period commences with the day on which childbirth occurs.

We already know you have satisfied the definition of childbirth and therefore would be entitled to ordinary maternity leave to start on that date. Maternity pay also follows on from that.

Failure to adhere to the legal regulations as above could amount to pregnancy/maternity discrimination and could be unlawful, allowing you to claim for potential compensation.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 15 days ago.
Thank you for your reply. I just have a couple more questions regarding the same situation.The following is what it's mentioned on my medical certificate.
“I certify that I attended you in connection with the birth which took place at X when you were delivered of a child followed by a death on the same day on Y”From your view and knowledge. Does this statement above misleading in some manner or does it not imply a birth of a living child and a death afterwards?
Customer: replied 15 days ago.
Lastly, to copy-paste some of my employees reply to my request for maternity leave:
Customer: replied 15 days ago.
34;I have taken a look at the medical documentation you have provided and sadly, with regards ***** ***** maternity leave and pay, this would be effective should the pregnancy loss happen at/after 24 weeks of pregnancy. Taking into account the dates that have been confirmed, it appears your pregnancy was under 24 weeks, which means we would be unable to meet the criteria for paying any maternity pay and leave period. Please let me know if you do not calculate this the same as me.I appreciate this is not the news you may have been expecting"
Customer: replied 15 days ago.
Should I just say then, in fact, I am entitled maternity leave and basically inform them what you've informed me? Not sure what to do from now to resolve this as peacefully as possible

Hello again and thank you for your further queries, which I will be more than happy to answer. The statement clearly states a child was delivered, which later died, which is obvious that it was not stillborn.

It is most likely that the employer is confusing the scenario where a child is stillborn, which only gives you rights if it happens on 24 weeks or after, whereas a living child, which later dies, even if soon thereafter, is still childbirth no matter when it happens.

Customer: replied 15 days ago.
Ben, thank you so much. I've been under an extreme stress with a loss of my baby and after straight up getting that reply from my employee, I felt so anxious and was looking for an immediate advice. I really appreciate your help and I hope you have a great weekend. Thank you so much again.

You are most welcome. If you have any further questions about this, please do not hesitate to get back to me and I will be happy to help. All the best.

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