The government has just announced that the new Parental Bereavement (Leave and Pay) Act comes into force in April 2020.
At present, employers have no legal obligation to provide paid time off for grieving parents. Some do, of course, but many others don’t, or provide leave but hold this against the employee later.
Section 57 of the Employment Rights Act 1996 currently gives employees the legal right to take ‘reasonable’ time off to deal with an emergency related to dependants. However, this entitlement is only to unpaid leave and does not necessarily allow for longer time off. There’s also no definition of ‘reasonable’, which allows for considerable interpretation on the part of either the employer or an employment tribunal if a claim ultimately results.
From April, this is due to change. The new Act lays out the following regarding who is entitled to bereavement leave:
Parents and primary carers who have suffered the loss of a child under the age of 18.
‘Primary carers’ include adopters, foster parents, guardians and those classed as ‘kinship carers’, who may be close relatives or family friends that have assumed responsibility for looking after a child in the absence of parents.
Parents who suffer a stillbirth after 24 weeks of pregnancy. Should this happen, female employees will still be entitled to up to 52 weeks of maternity leave and/or pay, as will a mother who loses a child after it is born.
rradar solicitor Laura Moore says “This legislative development, providing a legal right to both leave and pay for bereaved parents is welcomed, and much needed. Whilst some employers may have a more generous policy for bereaved parents, the introduction of a statutory minimum will assist many employees at a distressing time and employers looking to the legal minimum.”
Parents and primary carers who have been employed for a continuous period of at least 26 weeks prior to when the child dies - and have received pay above the lower earnings limit for the previous eight weeks - are entitled to at least two weeks’ statutory paid leave. If a worker has not been employed for a continuous period of at least 26 weeks, they will be entitled to two weeks’ unpaid leave.
The Act allows workers to take the two weeks’ leave entitlement in either one block of two weeks, or as two separate blocks of one week each. Regardless of how it is taken, it must be used within 56 weeks of the date of the child’s death. This allows bereaved parents to take time off for events such as birthdays or anniversaries that will cause emotional distress.
Notice requirements for taking the leave will be flexible, so it can be taken at short notice.
Parents who have at least 26 weeks’ continuous service and weekly average earnings over the lower earnings limit (£118 per week for 2019/20) will also be entitled to statutory parental bereavement pay, paid at the rate of £148.68 per week (for 2019/20), or 90% of average weekly earnings if this is lower. Small employers will be able to recover all statutory parental bereavement pay, while larger organisations will be able to reclaim almost all of it
If an employee loses more than one child, they will be entitled to take a separate period of leave for each child.
What HR needs to consider
“We’re urging our clients to get in touch if they are unsure of how these changes will affect them,” says Laura. “We recommend prior to the changes in April 2020 employers review their bereavement leave policy. It is important that company policies reflect the current legislative position to avoid reliance upon an inaccurate document. A failure to offer the correct Parental Bereavement Leave and pay may give rise to an Employment Tribunal claim.”
Other issues to consider include:
1. The Data Protection Act 2018 gives the employee the right to keep details of their child’s death confidential. HR and line managers need to be aware of how much employees would like colleagues to know, and take steps to make sure that those wishes are respected
2. The new Act does not give employers the right to ask the affected employee for a copy of the child’s death certification in order to prove entitlement to the new leave amounts.
3. People recover at different rates and some may need more than the statutory two weeks before they feel able to return to work. Employers will need to be flexible, supportive and sensitive to their employee’s needs. They may also want to consider offering additional paid leave.
4. Different religions have their own bereavement traditions and funeral rites. This could affect the amount of time an employee needs to take off. If the employer does not allow the employee to observe their beliefs and customs, this could amount to religious discrimination under the Equality Act 2010.
5. Bear in mind that suffering such a loss may lead to mental health issues such as depression, anxiety or post-traumatic stress disorder. This could count as a disability under the Equality Act 2010. In these cases, the employer must seek medical advice and make reasonable adjustments in order to head off a possible claim for disability discrimination at a later date.
If, after reading this article, you feel you need to review your bereavement and compassionate leave policies and make sure they’re legally compliant and fit for purpose, why not talk to our rradarstation advisors? rradarstation is a resource available through the AXA MLP where policyholders can access rradar’s legal advisory team over the phone or by email and web gateway that provides over 2,000 articles, step-by-step guidance sheets, forms, sample letters and templates to download relating to running your business/organisation.