The Parental Bereavement (Leave and Pay) Bill received Royal Assent earlier this month becoming the Parental Bereavement (Leave and Pay) Act 2018 (the “Act”). Under the Act, employees will be entitled to two weeks’ leave following the death of a child which, subject to the relevant qualifying criteria, will be paid at the statutory rate. The Act sets out the framework for the right and will be supplemented by regulations, which are yet to be published.

It is expected that the right will come into force in 2020.

What rights does the Act give employees?

The Act provides that:

  • bereaved parents will be entitled to at least two weeks’ leave following the death of a child under the age of 18 or if they suffer a stillbirth from 24 weeks of pregnancy. This is a day one right – there is no qualifying criteria. The leave must be taken within 56 days of the death, although there is scope for the regulations to provide a longer period e.g. within 12 months of the death;
  • employees who have sufficient service and earnings will be entitled to statutory parental bereavement pay (the specific eligibility criteria mirrors that of paternity pay). The Government guidance states that the rate of pay will be the same as that of statutory paternity and shared parental pay (currently the lower of £145.18 or 90% of the employee’s average weekly earnings per week);
  • who qualifies as a bereaved parent will be set out in the regulations, but the Act provides that it may be defined by reference to whether the employee was responsible for caring for the child before their death. This is in recognition of the fact that it is not only biological parents who may have a close relationship with a child; and
  • employees who take bereavement leave will be entitled to the same protection as with other forms of family leave, such as protection from dismissal or suffering a detriment.

What does this mean for employers?

Given that the right is not expected to come into force until 2020, employers do not need to take any immediate action. It is likely to be premature to update any compassionate leave policies, as the precise details of the right are yet to be confirmed.

In the meantime, employees will continue to have a statutory right to unpaid time off to deal with an emergency, which would include the death of a dependant. Many employees will also be entitled to paid time off following the death of a child under their employer’s compassionate leave policy. If no such policy exists, our experience is that employees who have lost a child often end up taking a period of sick leave.

The Government has commented that the purpose of the Act is to provide a “safety net” for employees, setting out their minimum rights in these circumstances; it acknowledges that most employers will already give employees greater rights than are set out in the Act. As such, the biggest impact is likely to be the protection against dismissal or detriment for having taken bereavement leave, but most employers are unlikely to dismiss or subject an employee to a detriment on these grounds in the first place.

There was considerable debate during the passing of the Bill as to the extent of the right, and in particular, whether: it should cover children over 18; employees should be entitled to more than two weeks’ leave; and employees should be able to take it beyond 56 days after the death. The Government commented that “[t]he key thing is getting the Bill on the statute book; once that has happened, we can consider secondary legislation and amendments”. Employers should therefore watch this space – it may be that the regulations provide greater rights to employees than those set out in the Act.