What can employers do now?
The Parental Bereavement (Pay and Leave) Bill, introduced into Parliament in July 2017, would entitle employees who have lost a child to statutory paid leave to allow them time to grieve. Although this is a private member's bill, it is supported by the government and would fulfil a Conservative manifesto promise to ensure bereavement support for employees – so there is a good chance that it will become law.
It has been estimated that one in 10 employees is likely to be affected by bereavement at any one time. The death of a child can have a devastating effect on parents' physical and emotional wellbeing; well-managed, sensitive support from an employer can make a big difference to the affected employee's experience and their successful return to work.
At this time, there is no legal requirement for UK employers to provide paid leave for grieving parents. Under Section 57(A) of the Employment Rights Act 1996, employees have a "day one" right to take a reasonable amount of unpaid leave to deal with an emergency (including the death of a dependant). There is no definition of 'reasonable' for these purposes – it is dependent on the circumstances. Disagreements can potentially arise between employee and employer with regard to the appropriate length of leave.
Attempts to introduce paid parental bereavement leave over the past few years have been unsuccessful – including a private member's bill which would have entitled employees to two weeks' paid leave if they lost a child under 18.
The Parental Bereavement (Pay and Leave) Bill was introduced into the House of Commons on July 19 2017 by Conservative Member of Parliament Kevin Hollinrake. Although it has not yet been published, its primary purpose will be to give employed parents a statutory right to paid time off to grieve the death of their child.
The bill is supported by the government, and its content and detail will be discussed in Parliament over the coming months. The Department for Business, Energy and Industrial Strategy has said that it will "be working with businesses, employee representatives and campaigners on behalf of working families to better understand needs of bereaved parents and employers". The bill is scheduled to have its second reading in the House of Commons on October 20 2017, when details of the envisaged statutory pay and period of parental bereavement leave should be announced.
While some organisations – particularly smaller businesses – may be concerned about the imposition of further regulation, most employers are likely to be sympathetic to employees' need for proper support in such a difficult time. A 2016 survey commissioned by the charity Child Bereavement UK revealed that less than one-third of British adults who were working at the time of their bereavement felt properly supported by their employer, indicating scope for improvement of management practice in this area.
Naturally, employees will respond to bereavement in different ways. Some will welcome a swift return to work to restore an element of normality, while others will need more time. Katie Koehler of Child Bereavement UK sees the bill as a way of giving parents more choice: "The opportunity for leave at a time that feels right for them as individuals would reduce one source of possible additional stress and paid leave would give parents the time to make decisions based on their needs rather than their financial situation."
The Advisory, Conciliation and Arbitration Service has issued guidance on managing bereavement in the workplace, including good practice suggestions for managing an affected employee's absence and their return to work. It notes that advance planning and training will better prepare managers to deal with this difficult issue. Further recommendations include the following:
- Employers should consider having a written bereavement policy in place to provide certainty and security at a confusing time.
- Details of the death are private under data protection legislation. The employer should always ask employees how much information they wish to give their colleagues and whether a more public announcement is appropriate. If the death was covered in the media, employers may need to deal with queries to the company and manage employees that might be approached by journalists.
- Employers should be aware of the risk that racial or religious discrimination claims may arise from refused requests for time off for religious observances on death. Certain religions require a set time for mourning: for example, observant Jews might need to mourn a close relative at home for seven days to sit shiva, while observant Muslims have certain set mourning periods depending on their relation to the deceased (eg, the 40-day Iddah to mourn a husband).
- Grief can manifest itself both physically and mentally, resulting in a long-term condition or illness. Employers should be mindful of this should there be a change in performance, behaviour or absence. Requests for time off or increased sickness leave should be treated carefully, in the knowledge that a long-term condition could give rise to the risk of a disability discrimination claim.
- Employers should remember that mothers who lose a child after 24 weeks of pregnancy, or during maternity leave, will not lose their entitlement to maternity leave and pay. Rights to paternity leave and shared parental leave (where notice of leave has been given) will generally also be maintained.
For further information on this topic please contact Lisa Dafydd at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.