You know it’s time to re-issue your employment legislation when the nearest available section number for the insertion of an amendment into the Employment Rights Act is Section 171ZZ. Though it might sound like a bottom-rank Star Wars droid, that little fellow is actually the proposed product of a new Bill on time off work for parents who lose children, the Parental Bereavement (Leave and Pay) Bill.

No one can question the lasting devastation of the death of a child, but what evidence is there that we really need still more employment legislation to ensure that the parent has some time to mourn? So far as is apparent from recent speeches on the matter (go to www.theyworkforyou.com to see who has said what in Parliament on the point), the sponsoring MP has no direct evidence of time off not being granted by an employer in those circumstances. Instead he relies on an unattributed story from another MP about someone in Scotland who was told on the death of his new baby that as he would therefore no longer need the balance of his paternity leave, he was expected to return to work. If true, this is obviously grim beyond words, but no Employment Tribunal on earth would support a dismissal on those grounds and so it seems scant grounds indeed for this new legislation. Any employer which would say such a thing at that time is hardly likely to pay attention to some obscure Westminster regulation anyway.

All that said, what about the proposal itself? Running to 18 pages, a full third of them consequential amendments to other statutory provisions, the Bill sets out a scheme with distressing parallels in terms of complexity and rank over-engineering with the Shared Parental Leave rules, including the frankly appalling proposition, that the employer should be entitled to ask for proof of the child’s death as a condition of granting the leave.

Key points so far, bearing in mind that the Bill is merely an enabling framework, not the detailed regulations due to be made under it:

  • “Child” is anyone under 18 and likely to include stillbirths after 24 weeks of pregnancy. “Parent” may include step-parents and others with established caring relationships above and beyond the biological parents.
  • The minimum period of leave will be two weeks, to be taken in whole weeks (but not necessarily consecutively) within eight weeks from the passing of the child.
  • Like maternity absence, you keep all your terms and conditions (and obligations) of employment over the absence period except in relation to remuneration.
  • There is a hint that the employer’s ability to dismiss the employee during the absence period may be limited and/or there may be an obligation on the employer to offer alternative employment. I imagine that this may end up looking like the Regulation 10 rules in the Maternity and Parental Leave Regulations around redundancy and priority for redeployment during maternity leave. A dismissal in breach of those rules in likely to be automatically unfair.
  • The right to time off has no prior service condition but Statutory Parental Bereavement Pay will by a new Section 171ZZ6(2)(b) – I am not making this up, I promise – only be available to those with six months’ prior continuous service.
  • Eligibility for SPBP may also be conditional on appropriate prior written notices being given to the employer of the week or weeks for which it is to be paid. I would take the view that giving an express form of notice to my employer would be the last thing on my mind if my world had just fallen apart through the loss of a child, so you would at least hope that any such notice could be retrospective.
  • SPBP will be deemed included in any continuation of the employee’s salary over the absence period and by Section 171ZZ10 you will not be able to contract out of paying it or make the employee contribute to it.

Losing a child is a horrible thing but this fairly overt attempt to turn grief into political capital is neither necessary nor fit for purpose. We must hope, for the benefit of both employers and the very people it is designed to protect, that if the Bill makes law at all, the implementing measures greatly declutter the provisions which it currently proposes.