Do Employers have a Duty of Care following Stillbirth?

Do employers have a duty of care following stillbirth?

Since Leo died, a lot of people have rightly asked us “how have work been about it all?” 

The pure notion that people feel that this is a worthwhile question, suggests to me that they also expect to not always get the answer of: “Amazing, they have been a tremendous support, very understanding and flexible, have researched themselves and are fully informed. I couldn’t have managed without them!”

Today, we have encountered another incredibly frustrating and potentially damaging situation at The Wife’s work. I won’t go into the details, because I’d be preaching to the wrong choir, however essentially she has been met with the standard attitude of: You’ve had your six weeks off, so as far as I am concerned, you are back to work. Despite recognising that she is working below the standard that she was previously, and despite her telling them that she is not motivated and is struggling, they seem to consider it a closed subject.

I have a background in HR and a Masters in Occupational Psychology. I also have a brain, empathy for others and, as my own employers state, a moral compass. I could write a fully evidence based essay on why the above attitude is not only damaging to us, but also to the employers, and hinders recovery – maybe I’ll leave that for another day. Because, equally, I’m not quite up to the job just yet.

It has got me thinking though. Ranting. Angry. Disappointed.

Employers have a duty of care to their employees. There is countless legislation surrounding Health and Safety and employee protection to ensure that everyone is safe. Even on the small non-legislated situations, they still have a duty of care. If someone, for example,  is late to work and this is abnormal behaviour, most employers would contact them – initially out of annoyance, but importantly, out of concern. In this situation, the employer is the first person for most who would be able to raise an alarm that something may have happened on the way to work.

On the basis that you spend the best part of your day at work, and those at home are equally struggling to come to terms with a bereavement – the employer must recognise and act on their duty of care. They are the first people to recognise those red flags that you’re not your usual self and perhaps struggling more than you first thought and/or are in need of some decent mental health support. It may be that you are distracted easily, cannot concentrate, no longer proactive, not motivated, not as diligent or effective, show poor timekeeping, forgetful, failing to ‘go that extra mile’, teary, quiet – or just different. 

These are expected qualities in someone who has been through trauma, depression, grief, stress. However, with the attitude above of not accepting that someone may show signs of struggling despite them having, what an employer considers as, adequate time off to get over it, the employee is put at risk.

An employee is an asset. They have monetary worth to an employer. Their worth increases when they are mentally and physically fit and capable to perform the tasks required of them to the expected standard. If an employee is not fit, and therefore of decreasing worth, then surely it is in the employers best interests to take an active role in aiding their return to fitness and subsequent value. However, it is too often seen as a performance issue that can be disciplined, and not ‘red flags’ for support.

Mental health is a contentious issue, especially in the workplace. Employers who are equipped, informed and accommodating to mental health issues are few and far between. However, when the incidence of mental health issues is as high as it is, it becomes not only a public health issue, but an economical and employment one too. Maintaining effective employment is of a benefit to the person, just as much as it is to the employer. Sadly, in my anecdotal experience, I think most would rather sweep it under the carpet or find a way of getting rid of the problem entirely. These options are aimed at benefit one party though; the employer. 

There has recently been a petition started to legislate bereavement leave in the UK following the death of a child, as there is little legislation guiding best practice. The standard, albeit discretionary, three days seems far from adequate when a close relative dies, especially a child. Three days would have taken us to the day after Leo’s birth, when we were still in hospital. It took four weeks until we were able to bury him. I appreciate some move quicker than this, but this was quick enough. A funeral however does not signify the end, in many cases, it is the beginning.

‘Luckily’ maternity and paternity leave is still granted in many situations, however the partner taking paternity leave sure gets the rough end of this situation. Additional compassionate leave, sick leave and unpaid leave appear the only options for any decent amount of time off. However compassionate leave, as mentioned, is discretionary and sick leave will often affect pay or performance reviews, adding additional stress to a traumatic situation. Neither the employer or the employee is guided well enough to know where each other stand in terms of time off, causing the employee to be put at further risk.

Time off, however, is not the only factor. Attitudes, communication and expectations from the employer are key to being able to maintain employment. It is a supportive environment, that allows for the ebbs and flows of grief, that surely benefits both parties. The employer will have a trained, valued member of staff who is able to work towards their previous fitness, and therefore worth, quicker with potentially less speed bumps in way. The employee has less stress placed upon them by external forces, that would otherwise exacerbate an immensely trying situation.

The SANDS Information for Employers is very good. I question how many employers would seek to find this themselves following the news that an employee had experienced a stillbirth or neonatal death, or similar situation. In the modern age, most problematic HR situations can be easily Googled, and both legal and moral advice found quite simply.  Many could argue that we ourselves, as the bereaved parents and the ones aware of SANDS information booklets, could signpost this to the employer. Is it our responsibility though? Should the one that is struggling, fully advice the one that is not how best to help? Especially when the answers are so easy to find elsewhere? This is the tiring aspect of grief. Holding everyone else’s hand to show them how to hold yours. 

The small everyday things are so unbelievably powerful in derailing the whole recovery effort. The employer must take some responsibility for this, regardless of the situation that their employee is going through. The Wife’s employer has long standing and established avenues for signposting during what is deemed ‘Welfare’ however, their perspective on it, is that they don’t signpost until they are asked. Do you watch someone drown, but wait for the screams of help, before throwing them a lifeline? Our bereavement services from the hospital seem to have the same theory. I appreciate the thought process that no one wants counselling pushed upon them – but surely there is an appropriate middle ground? When you are grieving and struggling, its quite hard to be rational and help yourself.

And please, the answer isn’t always counselling if someone is struggling at work. The power isn’t solely with the bereaved parents and their recovery. Those that are grieving need a small bit of support everyday in the workplace, a nudge in the right direction. They need checking up on, flexibility, understanding. They do not need to be jumping through hoops to protect their ongoing careers. They do not need their appraisals and promotion prospects held ransom because, just two months after their son died, they aren’t quite performing to the standard that they were before. If they are turning up to work, it doesn’t mean that they are actually okay. It doesn’t mean its going to be easy. It doesn’t mean that they are over it. It doesn’t mean that they won’t have bad days, or weeks. Employers can’t then push someone so far that getting signed off, or resigning is the only answer. Losing your job is one hell of a secondary loss and is surely far from helpful.

Choice is another thing. Partners rarely have a choice in when to return to work. They have a date to work towards, and are expected to an extent to meet it, and in this case be fine once there. Mothers on Maternity Leave (should the loss be after 24 weeks) are granted their full leave – in many cases, a full year. If a Mother decides to return to work before this point – then they have made a choice. That holds a massive impact on the outcome of that decision. It still won’t be easy. But there is a choice being made – and thats crucial.

And please, employers, anyone, whoever, please know that just because I carried Leo – that does not mean that I am suffering worse and that her suffering isn’t warranted. It is not all about me. It is about the whole family. There is no hierarchy in grief. 

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I thought it may be useful to even just one reader, to signpost to some helpful information.

SANDS Information for Employers 

ACAS : Managing Bereavement in the Workplace, a Good Practice Guide

Cruse Bereavement Care : Managing Bereavement

ACAS : Promoting Positive Mental Health at Work

MIND : Mental Health in the Workplace

Mindful Employer

 

I appreciated that most that read this are fellow bereaved parents, and therefore not the right audience as such, so feel free to share if you feel it may be helpful.