A private members Bill which seeks to provide bereaved parents with two weeks’ statutory paid leave had its first reading in Parliament last week.
Will Quince MP, who presented the Parental Bereavement Leave (Statutory Entitlement) Bill on 6 September 2016, rightly highlighted the disparity in the fact that parents who lose a baby through stillbirth, or in the first few days after birth, “…are entitled to full maternity and paternity leave, but if someone loses a child, or older baby – nothing.”
Currently, employees do not have an automatic statutory right to a defined period of compassionate/ bereavement leave on the death of a child, or indeed any close relative or dependant.
The law only stretches so far as to allow employees to take time off to deal with an “emergency” in consequence of the death of a dependant (s57A Employment Rights Act 1996). A “dependant” could be a spouse, partner, grandchild, parent, or someone who depends on the employee for care. However, we know from case law and guidance on s57A, that it is only designed to deal with practical, not emotional, matters (such as arranging or attending a funeral or dealing with probate) and it only entitles the employee to “reasonable” time off – which is unlikely to be more than a few days. Also, the leave is unpaid, unless the employer decides otherwise.
Aside from this, an employee’s own contract of employment may, expressly or impliedly, provide for a defined period of compassionate leave, which could be paid or unpaid. So, any employee’s entitlement to compassionate leave is inevitably dependent on how generous his/her particular employer is willing to be with their time and/or money. Mr Quince made the point that some employers are less flexible and sensitive than others and it was therefore important to iron out this inconsistency, giving every employee the choice to take time off to come to terms with their grief, without feeling the pressure of having to return to work.
The bill is scheduled for a second reading on 28 October 2016 and it will be a good while after that before we know if/when this welcome change to the law will take effect.
Until then, we can look to ACAS’ excellent guidance on managing bereavement in the workplace. This guidance (published in 2014 in conjunction with the bereavement charity, Cruse) deals with all sources of bereavement, including the loss of children, partners and colleagues. It helpfully sets out some basic good practice for employers and highlights some potential risk areas when managing bereavement, such as discrimination and bullying.
ACAS reminds us :
- Disability Discrimination: Employees experiencing mental health difficulties, such as anxiety, depression or PTSD as a consequence of bereavement, may be considered disabled and be protected from discrimination. Reasonable adjustments to remove workplace barriers may need to be made in respect of these employees.
- Policies and Training: Employers are encouraged to have a clear bereavement policy and invest in training managers and HR to have appropriate and sensitive conversations with bereaved employees
- Understanding: Employers must recognise that grief is unpredictable. Every bereavement is different and employees will react in different ways over time. This needs to be respected by both employers and colleagues.
- Consistent Treatment: When managing an employee’s return to work, the employer might have to consider offering adjustments, such as more flexibility in hours or a phased return. Employers should deal with all requests for time off and/or adjustments in a reasonable and objective manner. Inconsistency of treatment could lead to claims of discrimination.
We await the second reading of the Bill with interest.