New guidance from ACAS, entitled “Managing Bereavement in the Workplace”, has been launched today, providing a useful source for what can be a difficult and sensitive issue. Eversheds was actively involved in the drafting of this guidance and hosted a series of client briefings on bereavement in the workplace, in partnership with ACAS and the charity, Cruse.
Despite calls for legislation to allow bereaved parents five days’ bereavement leave, there is currently no directly relevant legislation. As such, the ACAS guidance is a welcome development.
Managing Bereavement in the Workplace
There is often concern or embarrassment from managers about doing or saying the “wrong thing”. However, the reality is that saying nothing and avoiding a conversation can create as much upset (and sometimes more). Like disability, if there is no dialogue an employer cannot know what support is needed.
As the guidance indicates, allowing a bereaved employee to indicate what contact they may want and their preferences to help manage their personal emotions and needs, is a good starting point which will enable managers to explore and balance individual and organisational needs. The guidance helps managers to plan such discussions.
The guidance goes beyond the issue of parents losing a child, touching on dealing with the death of a colleague, communication with other family members and staff who may be impacted by the bereavement, and the absence of a colleague through a bereavement.
The little legislation there is, is of minimal assistance. The right to request flexible working, for example, is not designed to deal with bereavement, though it may be a useful means to facilitate reduced hours or working from home.
Emergency time off for dependents which allows very brief absence from work has never been intended, according to the case law, to cover a situation in which a dependent dies. It deals only with unexpected disruption in caring for a dependent. The Employment Appeal Tribunal has made it clear that this legislation was never intended to deal with compassionate leave, but with practical and immediate issues arising in the event of a death, such as attending a funeral (Forster –v- Cartwright Black Solicitors).
The most striking example is parental leave. Whilst a parent is entitled to unpaid time off up to a child’s 5th birthday (18th from April 2015 and already 18 where that child is disabled), that time off is focused on caring for the child and does not apply where the child dies.
The only direct legislative provision is in relation to neonatal deaths and babies who are stillborn. That legislation is also very rigid, applying only to a mother who loses a baby after the 24th week of pregnancy. For such employees, maternity leave is retained. Miscarriage or still birth in the first 24 weeks of pregnancy is not classed as childbirth and so the employee has no special rights to leave or pay under the maternity legislation.
Legislation providing a rigid five days bereavement leave may not suit everyone. This new ACAS guidance will enable employers and employees alike to personalise their arrangements through discussion and dialogue to include, for example, what should be communicated to colleagues and the individual’s needs in terms of mourning and religious observance. You can read the guidance here.