Where an employee had been dismissed on the ground of medical incapacity while his contractual...
Bereavement leave and pay
Further details have been published on how the forthcoming right to bereavement leave and pay will work in practice.
Employed parents - and primary carers - who suffer the death of child under 18 (or a stillbirth from 24 weeks of pregnancy) will, from April 2020, become entitled to two weeks’ paid leave.
The new right is contained in the Parental Bereavement (Pay and Leave) Act 2018 which Royal Assent on 13 September 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.
Following a consultation, further details of the new rights (which will be set out in forthcoming regulations) are as follows:
- ‘Bereaved parent’ will include primary carers – not just parents. This includes adopters, foster parents and guardians, as well as more informal groups such close relatives or family friends who have taken responsibility for the child’s care in the absence of parents.
- This will be a Day 1 right - for leave purposes - but to qualify for the pay element, employees will need a minimum of 26 weeks’ continuous service (and be earning more than the lower earnings limit). The level of payment hasn’t been set but it’s likely that this will be the statutory flat rate used for similar types of leave such as paternity/maternity leave. Any contractual pay paid to an employee during the period in which they’re entitled to statutory bereavement pay can be offset against the liability to pay statutory bereavement pay.
- Bereavement leave and pay will have to be taken within a 56-week window from the death of the child (not, as specified in the Act, within 56 days). If more than one child dies, the parent will be entitled to leave in respect of each child (i.e. the period of leave would multiply). Parents will be able to split the leave period such that two week-long periods of leave may be taken separately.
- Regarding notice for leave and pay, the intention is for a two-tiered approach. No notice will be required for leave taken very soon after the date of the death. This will apply for a set period of a few weeks after the child’s death, in recognition that in this early stage employees are likely to need to take leave at little or no notice. Employees will, however, be required to tell their employer that they are absent from work because they are exercising their entitlement to bereavement leave. Informal notification will be acceptable. If leave is taken after the initial period following the death, a notice requirement will apply – at least one week from the employee.
- Regarding evidence for leave and pay, the government has decided to mirror, where appropriate, the evidence requirements used in other family leave/pay rights – but recognising the special circumstances that apply to bereaved parents. Employers may be allowed, in certain circumstances, to ask for a written declaration confirming entitlement to bereavement leave - but an employee who needs to take time off work to grieve in the initial period after the death of their child will not need to provide a written declaration confirming their entitlement to the leave before taking time off work. As for bereavement pay, regulations will allow a reasonable time frame for an employee to provide a declaration of eligibility.
The response to the consultation doesn’t cover this but it’s likely that employers will be able to recover statutory bereavement pay from HMRC.
There is currently no legal obligation to provide paid time off for grieving parents, although many employers 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. ACAS publishes a good practice guide to bereavement at work.
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.