Premature Births: Your Employer’s Position | Berry Smith

Premature Births: Your Employer’s Position. Having a child is usually a time for celebration and generally employers are comfortable with their obligations regarding maternity and paternity leave.  However, sadly still-birth is not uncommon, and babies are often born prematurely or with conditions requiring medical intervention. These topics continue to be taboo in many environments, with employers unfamiliar with their obligations in such circumstances.

As a result, ACAS has published guidance for employers supporting parents with ill or premature babies which can be read in full at

It is often the case that understanding the legal rights of an employee in these circumstances relieves some of the pressure felt by both the employee and the employer.

Premature babies are those born before 37 weeks of pregnancy and early births can cause a number of practical difficulties, including access to maternity pay/ allowance if a MAT B1 form has not yet been submitted and unexpected absence from the workplace.

Maternity leave cannot normally begin until 11 weeks before the expected week of childbirth but where a baby is born before maternity leave has commenced, the leave automatically starts the day after the birth.  In addition, if a mother is absent from work with a pregnancy-related illness in the 4 weeks before the expected week of childbirth, maternity leave automatically commences.

Where parents have suffered a still-birth, or a premature or ill baby sadly doesn’t survive, employers will need to support employees dealing with grief. Mothers are still entitled to take up to 52 weeks maternity leave and 39 weeks maternity pay, where a baby is still-born after 24 weeks of pregnancy, or is born alive but subsequently dies. Similarly, a father is also entitled to paternity leave and pay as normal.

Employers should not shy away from contacting employees in these circumstances but must ensure that all communications are compassionate and sensitive. They should consider contacting the employee to remind them to submit the MAT B1 form if this has not yet been done and advising them of their right to parental/shared parental leave and any other company benefits which may be relevant. It is however important for employers to be discreet until the employee’s wishes regarding notifying colleagues are known.

When employees are ready to return to work, employers should attempt to support them, understand the emotional upheaval that they will likely be experiencing and balance this against business needs.  Such support can come from providing extended unpaid leave, formal or informal flexible working, phased returns and homeworking. It is likely that in the case of premature or ill babies, the father may need to take more time off than normal to help the mother and attend hospital appointments and employers should try to be as flexible as possible in relation to this. Whilst these situations will never be straightforward, communication is key.


Jennifer Pinder

Senior Associate of Employment & HR Law at Berry Smith Lawyers

Please contact us if you would like any further advice about the issues raised in this article or any aspect of Maternity or Paternity Leave on 02920345525 and