The government has published two sets of draft regulations which, subject to parliamentary approval, will introduce a right to parental bereavement leave and pay from 6 April 2020. The regulations are to be known as ‘Jack’s law’ in memory of Jack Herd whose mother campaigned for the right to mandatory leave to be created for bereaved parents.

Who will be entitled to take parental bereavement leave?

Employees who lose a child under 18 or suffer a stillbirth from 24 weeks of pregnancy will be entitled to take parental bereavement leave, irrespective of how long they have worked for their employer.

For the purposes of the regulations, a ‘bereaved parent’ includes not only the birth parents of the child but also:

  • adoptive parents (including prospective adopters who are currently fostering);
  • other primary carers who are responsible for the day to day care of the child in the absence of the parents (e.g. legal guardians and many foster parents); and
  • a parent’s partner if they lived with the child and the child’s parent in an enduring family relationship.

How long does parental bereavement leave last and when can it be taken?

Bereaved parents are entitled to take two weeks’ parental bereavement leave. The two weeks’ leave do not have to be taken consecutively: employees can choose to take two separate one-week blocks of leave, as long as it is taken within 56 weeks of the child’s death.

Where an employee is entitled to parental bereavement leave as a result of the death of more than one child, they are entitled to take leave in respect of each child.

Are employees entitled to be paid whilst taking parental bereavement leave?

Bereaved parents are entitled to parental bereavement pay if they have at least 26 weeks’ continuous service and meet the minimum earnings criteria. Parental bereavement pay will be paid at either £151.20 per week or 90% of weekly earnings if lower. If a bereaved parent is entitled to statutory sick pay, they will not also be entitled to parental bereavement pay.

The new right to parental bereavement leave and pay will not impact the statutory entitlement to maternity and paternity pay and leave which already exists for parents of a child that is stillborn after 24 weeks, or dies shortly after birth.

What are the notice requirements for parental bereavement leave?

If a bereaved parent is taking their leave within 56 days of their child’s death, then there doesn’t appear to be an advance notice requirement: they must simply notify their employer before they are due to start work on their first day of absence of their intention to take parental bereavement leave and provide details of:

  • the date that their child died;
  • when they would like their period of leave to begin, and;
  • whether they will be taking one or two weeks’ leave.

Where an employee wishes to take leave after 56 days from their child’s death, but before the end of the 56-week period, they will require to give one week’s notice to their employer.

Employees are also able to cancel leave, if the correct notice is provided.

Some employers will already be allowing employees to take paid leave on the death of a child by exercising discretion under their compassionate leave policy. However, as there is currently no automatic right to paid time off for bereavement in the UK, this is a welcome development which the government estimates will help support around 10,000 parents each year.

Whilst, given the circumstances, two weeks is a relatively short time it will provide much-needed time off work for parents at a very distressing time. The fact that the two weeks does not have to be taken consecutively, but can be taken in two one-week blocks, allows parents the flexibility to take the time off when they need it most.

Importantly, bereaved parents will also be protected from any detriment or unfair dismissal they suffer as a result of taking parental bereavement leave.