On 13 September 2018 the Parental Bereavement (Pay and Leave) Bill received royal assent to become the Parental Bereavement (Leave and Pay) Act 2018. The act entitles employed parents who have lost a child to take statutory paid leave to allow them time to grieve. The new rights are expected to come into force in 2020.

Background

It has been estimated that one in 10 employees are likely to be affected by bereavement at any one time. The death of a child can have a devastating effect on a parent's physical and emotional wellbeing. Well-managed, sensitive support from an employer can make a huge difference to the affected employee's experience and their successful return to work. A 2016 survey commissioned by the charity Child Bereavement UK revealed that less than one-third of UK adults who were working at the time of their bereavement said that they had felt supported by their employer; therefore, there is evidently scope for improvement in management practice in this area.

There is no legal requirement in the United Kingdom for employers to provide paid leave for grieving parents. Under Section 57(A) of the Employment Rights Acts 1996, employees have a so-called 'day one' right to take a reasonable amount of unpaid time off work to deal with an emergency, including the death of a dependant. There is no definition of 'reasonable' for these purposes and this will depend on the circumstances. Therefore, disagreements between the employee and employer regarding the appropriate length of leave can arise.

Parental Bereavement (Leave and Pay) Act

Although the new legislation began as a private member's bill, it was supported by the government, which stated that:

This law makes Parental Bereavement Leave a legal right for the first time in the UK's history. Losing a child is an unimaginable trauma. I am delighted we have reached this important milestone which so many have campaigned for.

Regulations under the Parental Bereavement (Leave and Pay) Act will be required to set out the details of these new rights. However, the act provides for the following:

  • A bereaved parent is entitled to take at least two weeks' leave, which must be taken before the end of 56 days (beginning with the day of the child's death). The leave must be taken in one-week blocks but can be continuous or discontinuous.
  • Leave can be taken in respect of each child, where the death of more than one child is involved. A 'child' is a person under the age of 18 and includes a stillborn child after 24 weeks of pregnancy.
  • The definition of a 'qualifying parent' may be framed, in whole or in part, by reference to the employee's care of the child before they died (the regulations will provide more detail on this definition).
  • The rules about rights during maternity leave (and other family leave) also apply during bereavement leave, including:
    • the right to the same terms and conditions, other than in respect of pay; and
    • broadly, the right to return to the same role.
  • The process to be followed (ie, the requirement to give notice and provide evidence) will be set out in the regulations.
  • The rates of pay will also be determined by the regulations; however, in order to receive pay (rather than be able to take leave), a parent must have at least 26 weeks' service and must have received pay above the lower earnings limit for the past eight weeks.

What can employers do now?

The Advisory, Conciliation and Arbitration Service has produced guidance on managing bereavement in the workplace, including good practice suggestions for managing an affected employee's absence and their return to work. It emphasises that advance planning and training will help to ensure that managers are better prepared to deal with what can be a difficult issue to negotiate. Further useful recommendations include as follows:

  • Employers should consider having a written bereavement policy in place, as this can provide certainty and security at a difficult time.
  • Details of the death are private under data protection legislation. The employer should ask the employee how much information they wish to give their colleagues and whether a more public announcement is appropriate. If the death was covered in the media, employers may need to deal with further queries to the company and manage other employees that may be approached by, for example, journalists.
  • Employers should be aware of the risk of racial or religious discrimination claims that may arise from refused requests for time off for religious observances on death. Certain religions require a set time for mourning; for example, observant Jews may need to mourn a close relative at home for seven days to sit shiva, while observant Muslims have certain set mourning periods depending on the relation of the deceased relative.
  • The effect of grief could manifest itself both physically and mentally, resulting in a long-term condition or illness. Employers should be mindful of this, should there be a change in performance, behaviour or absence. Therefore, requests for time off or increased sickness leave should be treated carefully, in the knowledge that a long-term condition could give rise to the risk of a disability discrimination claim.
  • Employers should remember that mothers who lose a child after 24 weeks of pregnancy or during maternity leave will not lose their entitlement to maternity leave and pay. Rights to paternity leave and shared parental leave (where notice of leave has been given) will generally also be maintained in these circumstances.

For further information on this topic please contact Lucy Lewis at Lewis Silkin by telephone (+44 20 7074 8000?) or email (lucy.lewis@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.

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