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Employment Law Cases
Bereavement leave and pay
Employed parents who suffer the death of child under 18 (or a stillbirth from 24 weeks of pregnancy) are, from 6 April 2020, entitled to two weeks’ bereavement leave and, subject to qualifying conditions, two weeks' bereavement pay.
The new right is contained in the Parental Bereavement (Pay and Leave) Act 2018. The Act is an enabling piece of legislation because it leaves much of the detail to be specified in regulations, e.g. notice, protections from dismissal and detriment, and what happens during redundancy. Regulations set out more of the details: the Parental Bereavement Leave Regulations 2020 and the Statutory Parental Bereavement Pay (General) Regulations 2020. An employer guide has also been published by the government. Both ACAS and the CIPD have also published useful guidance.
The employee must be a ‘bereaved parent’, which means that at the date of the child’s death they were any of the following:
- the child’s parent
- the child’s natural parent who has lost their legal status as parent following an adoption or parental order but in whose favour a contact order has been made
- a person with whom the child had been placed for adoption
- an adopter with whom the child was living, following the child’s entry into Great Britain from outside the UK, and who had received official notification in respect of the child
- an intended parent of the child - someone who had applied, or intended to apply during the period of 6 months beginning with the day of the child’s birth for a parental order in respect of the child and who expected the court to make such an order
- the child’s parent in fact - someone who for the previous 4 weeks lived with the child in the child’s home and had day-to-day responsibility for the child’s care
- the partner of any of the above who was living in an enduring family relationship with that person and the child
Parental bereavement leave
- The right is a Day 1 right, so no minimum period of employment is needed.
- The right is to take one or two weeks leave (beginning on any day of the week) - either in one block of 2 weeks or two blocks of 1 week each. The leave may be taken at any time within 56 weeks of the child’s death.
- If more than one child dies, the parent is entitled to leave in respect of each child.
- The notice which an employee must give to their employer to exercise their right has to specify the date of the child’s death, the date on which the employee chooses any period of absence to begin and whether the employee intends that period of absence to be a period of 1 or 2 weeks leave.
- Where the leave taken begins within 56 days of the child’s death, notice must be given by the employee before they are due to start work on their first day of absence or, if it is not reasonably practicable to do so, as soon as is reasonably practicable. Where, however, the leave taken begins after 56 days, at least one week’s notice must be given.
- Notice doesn’t have to be in writing.
- The employee can cancel the leave by giving the same notice they are required to give to take the leave, but the employee cannot cancel any week of leave that has already begun.
- During leave the employee is entitled to the benefit of all the terms and conditions of employment which would have applied if they had not been absent, other than remuneration.
- The employee is entitled to return from leave to the job in which they were employed before the absence. The exception is if the employee combines the parental bereavement leave with a period of parental leave of more than four weeks or a period of other statutory leave which means the absence totals more than 26 weeks. Here the right is to return to the same job or, if that is not reasonably practicable, to another job which is both suitable and appropriate for the employee to do in the circumstances.
- The employee also has right not to be subjected to any detriment by their employer because they took, sought to take, or made use of the benefits of, parental bereavement leave, or the employer believed that the employee was likely to take parental bereavement leave. Dismissal for such a reason will be automatically unfair.
Parental bereavement pay
- To be entitled to statutory parental bereavement pay the employee has to have been employed by the employer for a continuous period of at least 26 weeks as at the relevant week (the week immediately before the one in which the child dies) and to have normal weekly earnings not less than the lower earnings limit.
- Statutory parental bereavement pay will be at the rate of £151.20 per week (or 90% of earnings if less).
- Notice must be given before the end of the period of 28 days beginning with the first day of the period in respect of which payment of statutory parental bereavement pay is to be made or, where it is not reasonably practicable to give such notice, as soon as is reasonably practicable.
- The evidence of entitlement required is the name of the person claiming the statutory parental bereavement pay, the date of the child’s death and a declaration that the employee is a bereaved parent within the meaning of the legislation. This must be provided in writing and at the same time as the notice in the paragraph above.
Up until April 2020, there was no legal obligation to provide paid time off for grieving parents, although many employers did, and continue, to do so. The Employment Rights Act does give employees a Day 1 right to take a ‘reasonable’ amount of unpaid time off work to deal with an emergency involving a dependant, which could include making arrangements following the death of a dependant.
As with other types of family leave which are paid at the statutory rate, it may be that take up of the new right is low given that there is a financial disincentive to take the leave for many families. Some employers may of course choose to offer enhanced pay in line with their compassionate leave policy, particularly given the infrequent and traumatic circumstances in which this leave and pay will operate. In practice, employers may already be allowing employees to take paid leave on the death of a child by exercising discretion under their compassionate leave policy.
Remember that where mothers lose a child after 24 weeks of pregnancy, or during maternity leave, they will not lose their entitlement to maternity leave/pay and the mother will still be prohibited from returning to work for at least two weeks after the birth. Rights to paternity leave and shared parental leave will also generally be maintained.