by Laura Ensor, Managing Associate, Dublin office, Lewis Silkin LLP
As the Labour government in England, Wales and Scotland commits to introducing pregnancy loss leave (for those who experience pregnancy loss before 24 weeks of pregnancy), we take a look at the current rights of those who experience a pregnancy loss in Ireland, as well as potential future developments and what employers can do to support employees.
The Irish Government published a report on 16 January 2024 in relation to Pregnancy Loss (under 24 weeks) in Workplaces (the “Report“), highlighting the prevalence of pregnancy loss under 24 weeks (which includes miscarriages, molar pregnancies, ectopic pregnancies and terminations for medical reasons), and noting that pregnancy loss affects approximately one in every four pregnancies. It also noted that the majority of women of reproductive age are in paid employment and, therefore, emphasised the importance of the workplace in pregnancy loss experiences.
Pregnancy loss can have both an emotional and physical impact, with many pregnancy losses requiring some form of medical care and necessitating a period of absence from work.
What leave can employees currently take in Ireland?
Pregnancy loss after 24 weeks
Currently, only employees who give birth to a live baby or who experience a stillbirth have a legal entitlement to statutory leave. The definition of stillbirth was revised in September 2024 to reflect improvements in neonatal survival rates and is now defined as occurring after 23 weeks of pregnancy (from the beginning of the 24th week) or where the baby has a birth weight of over 400g.
Such employees are entitled to take their full statutory maternity leave entitlement. In the case of a premature birth, the maternity leave will be extended for the period between the actual date of the birth and the original expected start date of the maternity leave. Employees may be entitled to state maternity benefit if they have made sufficient PRSI contributions. In addition, they may be entitled to maternity pay if their employer has a policy that provides for this.
Partners of employees who experience a stillbirth are entitled to take two weeks of statutory paternity leave and may be entitled to state paternity benefit, or paternity pay where this is provided by their employer.
Pregnancy loss before 24 weeks
For pregnancy losses that occur before 24 weeks of pregnancy, there is currently no specific statutory leave entitlement. These employees have the following options where they need to take time off work:
- Sick leave – Sick leave is often relied on by employees in such circumstances. Under Irish law, employees currently are legally entitled to five days of paid sick leave per year, subject to medical certification. Sick pay is required to be paid by the employer during this period at 70% of the employee’s normal pay up to a maximum of €110 a day. The employee must have at least 13 weeks’ service with their employer in order to be eligible for statutory sick pay.
Many employers have more generous sick pay policies that employees can avail of but these are rarely open-ended. As a result, the paid sick leave available to an employee in the future is reduced. It may also be difficult for a partner, who is also dealing with the emotional impacts of the loss, to avail of sick leave entitlements where they themselves are not experiencing any physical symptoms or undergoing any medical treatment.
- Annual leave – Full-time employees have a statutory entitlement to 20 days annual leave per year. Although many employers will provide a greater annual leave entitlement, this will rarely exceed 30 days. Employees can take annual leave after a pregnancy loss but the intention of annual leave is for it to be used for rest and recreation. As with sick leave, this can lead to reduced future entitlements to annual leave and where employees are experiencing ongoing fertility issues the taking of holidays at a future date may be all the more needed and important.
- Compassionate/bereavement leave – Employees are not legally entitled to take compassionate/bereavement leave, however, many employers have policies governing paid or unpaid compassionate/bereavement leave following the death of an employee’s close family member. This leave is subject to the employer’s discretion and, although some employers may extend the scope of this leave to employees who experience a pregnancy loss, others may not consider a pregnancy loss to be a death of close family member.
- Force majeure leave – Employees are entitled to take three days paid force majeure leave in 12 consecutive months, or five days in 36 consecutive months, where for urgent family reasons, owing to an injury to or the illness of a close family member, their immediate presence at the place of the family member is indispensable. A close family member for these purposes includes a person who resides with the employee in a relationship of domestic dependency. It is possible that partners could fall within the scope of force majeure leave where their wife or partner is experiencing a pregnancy loss.
In a recent decision of the Labour Court in Komfort Kare v Dean Hart PLD242, the Labour Court awarded an employee €2,500 in compensation where the employer refused to allow the employee to take force majeure leave following his wife’s miscarriage. The Labour Court was satisfied that the employee’s immediate presence was required with his wife due to her ongoing medical situation and that his presence with her was indispensable as she required additional support and medical care. However, the Labour Court also held that the question of whether an employee’s immediate and indispensable presence is required is a matter of fact that can only be determined by looking at the circumstances at the time and so there may be circumstances that would not qualify for force majeure leave.
- Unpaid leave – employees are also entitled to take five days unpaid leave where for serious medical reasons the employee needs to provide personal care or support to a family member or person who lives in their household and partners will usually satisfy the eligibility criteria for this leave. Employers may also allow employees to take discretionary unpaid leave.
Protection in Employment
Discrimination / Discriminatory dismissal
Employers cannot treat employees who experience a pregnancy loss less favourably than other employees, as doing so would likely amount to discrimination on grounds of gender (as it is related to pregnancy) and, potentially, family status. An employee’s pregnancy loss should not be taken into account when making decisions, such as decisions relating to pay reviews, promotion, selection for redundancy, dismissal. For example, an employer cannot decide not to promote an employee to a new role on the basis that they expect that the employee may get pregnant again and may be absent from work for a period on maternity leave, nor can it dismiss an employee due to absences related to a pregnancy loss.
Where such a decision is taken for reasons connected with an employee’s pregnancy loss, the employee may seek redress from the Workplace Relations Commission (WRC) under the Employment Equality Acts 1998-2015 (EEA), where the WRC could award, reinstatement, re-engagement or compensation of up to two years’ remuneration. The level of compensation awarded to the employee can take into account the effects of the discrimination.
In claims for discrimination or discriminatory dismissal under the EEA, the employee is required to establish facts which are sufficient to raise an inference of discrimination. The fact of the employer’s knowledge of the pregnancy loss and some form of adverse treatment would usually be sufficient to do so. It is then for the employer to prove that the employee was not discriminated against and that there were other reasons unrelated to the pregnancy loss that justify the adverse treatment. The WRC has previously held that it’s not sufficient for an employer to simply assert that the treatment was unrelated to pregnancy – rather some persuasive evidence of an unrelated justification is required in order for an employer to defend such a claim (A Bar Manager v A Hotel ADJ-00013503).
In the case of Marta Siudak v Slane Trading Company Limited ADJ-00038952, the WRC found that there was a discriminatory dismissal on gender grounds in circumstances where the complainant was dismissed for alleged performance reasons following a miscarriage. The WRC was satisfied that the dismissal was related in some way to the complainant’s gender and pregnancy.
In A Bar Manager v A Hotel ADJ-00013503, the complainant believed she had suffered a miscarriage and informed her employer of this and the mental health issues she was experiencing as a result. It transpired that the complainant had not in fact miscarried and was pregnant. Her employer dismissed her on grounds of redundancy and denied knowledge of her pregnancy, as its understanding was that she had miscarried and was not pregnant at the time of the dismissal. The WRC held that, whether or not the employer was aware that the complainant was pregnant at the time of the dismissal, the employer was aware that she had been pregnant, and the complainant’s pregnancy was a significant contributing factor in her dismissal. The dismissal was therefore discriminatory.
Unfair dismissal
An employee who is dismissed following a pregnancy loss could also take a claim under the unfair dismissal legislation, although they cannot pursue both an unfair dismissal claim and discriminatory dismissal under the EEA. If the dismissal of an employee results wholly or mainly from the employee’s pregnancy or any matters connected to it, the dismissal will be an unfair dismissal.
Although employees in Ireland are generally required to have 12 months’ service in order to bring an unfair dismissal claim, this service requirement is waived where the dismissal is due to the employee’s pregnancy or matters connected to it.
In an unfair dismissal claim, the WRC can award reinstatement, re-engagement or compensation of up to two years’ remuneration, limited to actual and future loss, and the employee has a duty to mitigate their losses.
In the case Western Brand Group Limited v Aneta Petrova UD/17/12, the Labour Court found that the complainant had been unfairly dismissed in circumstances where she only had one month’s service with the employer. The employer alleged that it was not aware of the complainant’s pregnancy at the time of the dismissal and that the dismissal was related to the complainant’s unavailability to attend work. The Labour Court was of the view that the employer was aware at the time of dismissal that the reason for the complainant’s absences was her previous pregnancy and miscarriage.
Another case, recently reported in the media, is currently before the WRC in which an employee of a hotel group was dismissed 11 days after she experienced a miscarriage and prior to her having the 12 months’ service required to bring an unfair dismissal claim.
Developments in Ireland and elsewhere
In 2021, the Irish Labour Party published a Private Member’s Bill, the Organisation of Working Time (Reproductive Health Related Leave) Bill 2021, proposing 20 days paid time off for employees following a pregnancy loss. Earlier this month, the Labour Party called once again for this leave to be introduced.
The Report recommends that a statutory right to paid leave should be introduced for pre-viability pregnancy loss, regardless of the gestational stage or the reason for the loss.
However, such proposed legislation does not feature in the Government’s Spring 2025 Legislation Programme and so it is unlikely that we will see any developments in Ireland soon.
Elsewhere, it appears that a new provision for leave after pregnancy loss looks likely to be introduced in England, Wales and Scotland. Following a Women & Equalities Committee report in January 2025, an amendment was put forward by a Labour MP to the Employment Rights Bill which would have introduced two weeks of paid leave for mothers and their partners who experience pregnancy loss before 24 weeks of pregnancy. During House of Common debates, the government have committed to introducing pregnancy loss leave as the Bill progresses through the House of Lords. This is expected to be unpaid but details are yet to be confirmed.
In Northen Ireland, the Department for the Economy announced that the current parental bereavement rights, which allow working parents two weeks’ paid leave upon the death of a child or a stillbirth from 24 weeks of pregnancy, will be extended to include working parents who suffer a pregnancy loss before 24 weeks. Regulations are needed to effect these changes and these must be in place by April 2026 at the latest.
According to the Report, other countries such as New Zealand (provides for 3 days of paid bereavement leave following a pregnancy loss before 20 weeks) and Portugal (provides for 14-30 days pregnancy loss leave depending on the medical certification) have already introduced this type of leave.
What can employers do?
Many employers have already implemented initiatives to support employees who are experiencing a pregnancy loss. Offering genuine support and compassion to employees at such a difficult time will help with employee retention and will promote loyalty and trust, as well as diversity and inclusion in the workplace and good employee relations.
There are a number of steps employers can take to support their staff:
- Pregnancy loss policy: Miscarriage and pregnancy-loss policies, which offer additional leave and pay to employees to attend medical appointments and recover from a pregnancy loss, are becoming more and more common. Many employers have already implemented their own pregnancy loss policies. As noted in the Report, Bank of Ireland, Lidl, Diageo and Vodafone have all introduced early pregnancy loss leave. Since 2022, Pinterest has also offered employees four weeks of paid leave for pregnancy loss through miscarriage at any point in the pregnancy.
- Manage absence: Each individual is likely to have different leave requirements and employers should be flexible and treat any leave requests with compassion and sensitivity. If the employer does not have a pregnancy loss policy in place which specifically deals with how leave will be handled in such circumstances, the employer should outline to the employee the options available to them (as we have outlined above) and whether the various options will be paid or unpaid, providing as much flexibility as possible.
It is also worth considering how such leave is recorded on employee systems, as employees may not wish for others to be aware of the reason for the leave. In addition, employers should consider how the leave may impact on an employee’s attendance record and be taken into account in any performance review or promotion review.
- Return to work: Employers should consider what supports can be put in place to assist employees when they return to work. Employers should have a return to work meeting with the employee to discuss any concerns the employee has and whether the employee requires any accommodations to be made e.g. a phased return to work or flexible working hours.
- No one size fits all: Employers should acknowledge that every employee’s experience of pregnancy loss will be different. They should be considerate to each employee’s own individual circumstances and offer appropriate supports.
- Don’t forget the partners: Although the birthing parent will often have a physical experience to heal from, both parents may feel an emotional trauma. Employers should ensure any benefits and support are available to all parents, regardless of gender or how they got pregnant. This will help avoid any arguments of discrimination, as well as ensuring all employees are supported.
- Create an open and supportive culture: Employees aren’t legally required to inform their employer of their pregnancy until four weeks before they intend to commence maternity leave, although many employees will inform their employer before this time. There is a high chance that a pregnancy loss might occur without the employer even knowing that the employee was pregnant in the first place.
Creating a culture where employees feel comfortable and supported discussing their pregnancy (and pregnancy loss) will help employees to communicate their needs and assist employers in offering appropriate supports. Employers can do this by implementing many of the steps we have set out above. Where an employee views their employer as supportive of these issues, by having a policy in place for example, and are not fearful of any adverse reaction, they are more likely to open up about their experiences.
Employers may consider how to raise awareness and encourage open discussions about pregnancy and pregnancy loss on an ongoing basis. This could include setting up employee support groups or forums.
- External support: Employees should be reminded of appropriate support, such as employee assistance programmes or counselling. Other external support, such as that provided by the Miscarriage Association of Ireland, Pregnancy and Infant Loss Ireland and other bereavement support services should also be passed on to employees if needed.
Report of the Department of Children, Equality, Disability, Integration and Youth in relation to Pregnancy Loss (under 24 weeks) in Workplaces – report available here.
About the author
Laura Ensor is a Managing Associate in the Employment, Immigration and Reward team, based in the Dublin Office of Lewis Silkin LLP
Laura advise’s clients on all aspects of employment law, both contentious and non-contentious, from the start of the employment relationship through to its termination. She helps organisations with drafting contractual documentation and employment policies, conducting HR processes, including performance management processes, grievance processes, disciplinary processes and redundancy processes. Laura also handles employee terminations and any subsequent settlement negotiations and employment claims.
Laura has successfully represented a number of clients before the Workplace Relations Commission, the Labour Court and the civil courts in a variety of claims including unfair dismissal, discrimination and whistleblowing claims.
Laura also advise’s on a variety of corporate immigration matters such as employment permit applications.
