The Royal Assent of the Parental Bereavement (Leave and Pay) Bill on 13 September 2018 saw the Government enshrine in law the first piece of legislation of its kind in UK history.

The new right will entitle bereaved parents to two weeks of leave following the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy. It is a ‘day one’ right for employees, without any period of qualifying service.

The legislation is expected to benefit around 8,000 bereaved working parents a year. It will apply to those affected by the tragedy of childhood mortality during the course of their employment and will go some way to reduce the pressure on employees to return to work before they are ready.

The new right to parental bereavement leave is expected to come into force in April 2020.

Who will be eligible?

The exact meaning of a ‘bereaved parent’ will be outlined in separate regulations, which are yet to be published. However, it will be based on the nature of the relationship that the employee shared with the child before their death. In addition to biological parents, those eligible are anticipated to include foster and adoptive parents as well as legal guardians.

Bereaved parents employed with a minimum of 26 weeks’ continuous service will also be entitled to receive statutory parental bereavement pay, which is likely to be paid at the same rate as statutory paternity/maternity and shared parental pay. Those with less than 26 weeks’ continuous service will be entitled to take two weeks of unpaid leave.

How the right will apply in practice

Bereaved parents will be entitled to take their leave in one two-week block or in two separate blocks of one week. If part of the leave is not taken immediately following the child’s death, employees will be required to provide their employer with one week’s notice.

The leave must be taken before the end of a period of at least 56 days beginning with the date of the child’s death (although regulations may provide for a longer period).

The current situation – time off for dependants

All employees are currently entitled to take reasonable (unpaid) time off for dependants. This right allows employees to deal with unforeseen matters and emergencies involving a dependant, including leave to arrange or attend a funeral. Some employers may choose to pay employees throughout this period, but there is no automatic right to pay and no set amount of time off that employees are entitled to take. It is currently left to the discretion of employers.

Acas recommends that employers take a compassionate and supportive approach when managing employees who have suffered the bereavement of a child, and in practice most do. Some employers may already include a policy for paid (or unpaid) compassionate leave within their employment contracts or handbook.

Without a compassionate leave policy in place, managing bereavement in the workplace is no easy feat. A key issue here is that what some employers may be deem to be a ‘reasonable’ amount of time off, may not necessarily be considered reasonable by those dealing with the bereavement. Determining what is a reasonable amount of time during such an emotional and sensitive time is, therefore, very subjective. In addition, the statutory right to time off for dependants is intended for employees to deal with practical arrangements, rather than time needed to start coming to terms with the loss. In the absence of a compassionate leave policy, some employees may be signed off sick by their GP or elect to take a period of annual leave following the death of a child.

Enhancing employment rights

It is widely agreed by MPs and organisations providing support to grieving families that the Parental Bereavement (Leave and Pay) Act 2018 is a welcome improvement to employment legislation. From April 2020, bereaved parents who may otherwise have faced the added pressure of having to return to work will have the right to a minimum level of leave. The Government has stated that this is intended to provide a ‘safety net’ for employees, in the expectation that many employers will elect to enhance the basic minimum with a longer period of leave and/or paid at a higher rate.