When a staff member loses a loved on, employers are in the position of balancing compassion and support while ensuring minimal disruption to operations. This generally means giving the employee some time off work to grieve and to make necessary arrangements.
The law itself offers little clarity on bereavement leave – except in the case of parental bereavement leave – meaning entitlement will be determined at the employer’s discretion and any organisational policies that are in place. This can create risk for employers if the policy is not implemented correctly and consistently.
In this guide, we explain how employers should approach managing requests for compassionate leave, with best practice advice to support employees through what is a hugely difficult time in their lives.
What does the law say about bereavement leave?
Bereavement leave, or compassionate leave as it is commonly known, is the period of time that an employee may be permitted to take off work following the death of a member of their immediate family or a ‘dependant’.
Rather unhelpfully for both employers and employees alike, the law relating to bereavement leave is not clearly defined in the UK, with the exception of statutory parental bereavement leave, which we discuss below.
The Employment Rights Act 1996 provides generally that anyone classed as an employee has the right to take ‘a reasonable amount of time’ off work to deal with emergencies and issues relating to dependants, including to care for a dependant who falls ill or following the death of a dependant to arrange or attend a funeral.
The 1996 Act defines a dependant as ‘a spouse or civil partner, a child or a parent’, as well as ‘a person who lives in the same household, otherwise than by reason of being their employee, tenant, lodger or boarder’. As such, a person living in the same household would include a cohabiting partner. It could also be someone who relies on an employee for their care or for help during an emergency, such as an elderly neighbour.
How long is bereavement leave?
Employees may take ‘a reasonable amount of time’ off work, but what constitutes ‘reasonable’ following the death of a dependant is not statutorily defined.
How long employees can take for bereavement leave should be documented within the employment contract or the organisation’s bereavement policy. Generally, around two to five days bereavement leave would be considered reasonable in most circumstances.
In the absence of any documented policy, the employer can exercise their discretion on a case-by-case basis, being as reasonable and consistent as possible in line with previous custom and practice, and taking into account factors such as the nature of the employee’s relationship to the deceased and the circumstances of the death, for example, where unexpected or especially traumatic.
Employers should also respect and accommodate employees’ religious beliefs and customs following the death of a loved one. In particular, under the Equality Act 2010, refusing to allow an employee sufficient time for mourning rituals that form a part of their faith could be considered indirect discrimination.
While an employee is absent from work, the employer is under a duty to maintain reasonable contact and to support their return to work while respecting their physical and mental wellbeing.
Is bereavement leave paid?
Entitlement will depend on the employee’s contract terms. Employees are not automatically entitled to paid time off for bereavement leave. However, many employers offer provision for paid leave in the event of a bereavement in support of employee wellbeing, which should be set out as a contractual term or as part of the organisation’s relevant policy on bereavement or absence.
The policy may allow for some flexibility in light of the employee’s personal circumstances and personnel record. While management discretion can be beneficial, it can also present risk if managers are seen to act inconsistently or to treat employees differently or more or less favourably than others.
Where paid time off is available, the rate of pay will be set by the employer. If the time off is to be classed as sick or holiday pay, the normal rates for those entitlements should be applicable. Some organisations take a discretionary approach, with line mangers determining how to manage and approach bereavement leave in the specific circumstances.
Notifying the employer
Employers should look to be supportive of employees who are recently bereaved, allowing time off to grieve, make funeral arrangements and deal with organising the deceased’s will and possessions.
The organisation’s approach to bereavement leave should be set out within a company policy relating either to absence in general or under a specific policy for bereavement leave. The policy should, for example, clarify:
- How the employer will treat time off work for bereavement leave, e.g. as sick leave or holiday leave?
- How much leave the employee can take
- What the employee will be paid during the period of bereavement leave e.g. sick pay if taken as sick leave
- What the employee needs to do to report the bereavement, and whether another individual such as a family member can report their absence on the employee’s behalf
- The employer’s position if the deceased was not a ‘dependant’ as defined under the Employment Act
- How the return to work will be handled e.g. will a fit note be required?
Without a bereavement policy, the employer should still follow the law, and act reasonably and consistently in doing so.
Employees also have the right for their bereavement to be kept private. If an employee does not want the bereavement to be disclosed to work colleagues, they should make this clear to their employer when informing them of their reason for absence.
If an employee is given bereavement leave, the employer must not treat them unfairly for taking time off, for example, refusing them training or promotion. The employer should also not select them for redundancy because they asked for time off. In the event that an employee has been treated unfairly for taking bereavement leave, they may be able to bring a tribunal claim.
Can employees take additional time off work?
Employees wanting to take more time off work than is available under bereavement leave should raise this request as soon as practicable with their employer to discuss options, rather than taking a leave of absence without explanation or on the basis of ill health.
Extended bereavement leave will be at the employer’s discretion and will usually be unpaid. If absence is due to ill health, for example depression as a consequence of the bereavement, the employee should inform their employer and provide any advice from their doctor such as a sick note as they may be entitled to take the time off as sickness absence and be paid under their sick leave entitlement.
It is in the employer’s interests to show compassion and support by not compelling the employee to return to work too quickly as this may affect their ability to perform some or all of their work-related tasks. This is particularly thew case if they have lost someone close or in traumatic circumstances.
Ideally, you should look to be flexible when it comes to supporting valued employees during such an emotionally difficult time. This could include discussing options for further time off work using their entitlement to paid annual leave or whether a flexible working arrangement may offer a workable solution, particularly if the employee has new caring responsibilities following their loss.
Parental bereavement leave
Under the Parental Bereavement (Leave and Pay) Act, parents and primary carers who have lost a child under the age of 18 may be entitled to parental bereavement leave and/or statutory parental bereavement pay.
Parental bereavement leave is 2 weeks and can be taken from the first day of employment. The two week period of bereavement leave can be used in one block of two weeks or as two separate one week periods. Leave must be taken within 56 weeks of the date of the child’s death.
Where the employee has lost more than one child, they will be entitled to take parental bereavement leave and pay for each child.
The employee’s employment rights are protected while on parental bereavement leave, including their rights to pay rises, accruing annual leave and returning to work.
For statutory bereavement pay, parents and primary carers must have been employed for a continuous period of at least 26 weeks before their bereavement and have received pay above the lower earnings limit for the previous eight weeks. The rate of parental bereavement leave is set at either £172.48 a week or 90% of their average weekly earnings – whichever is lower.
Those who have not been employed for less than the continuous period of at least 26 weeks will be entitled to two weeks’ unpaid parental bereavement leave.
‘Primary carers’ include adopters, foster parents, guardians and others such as close relatives or family friends that have assumed responsibility for looking after a child in the absence of parents.
The law also applies to employees who suffer a stillbirth after 24 weeks of pregnancy, continuing the right to 52 weeks of maternity leave and pay.
Bereavement leave after miscarriage or stillbirth
Employees are entitled to 52 weeks’ of statutory maternity leave and pay following a stillbirth after 24 weeks of pregnancy.
Many employers also offer time off for employees who have miscarried before 24 weeks; this should be detailed in the organisation’s sickness or maternity policy, or may be available at the employer’s discretion.
Returning to work
Employers should be mindful that on returning to work after bereavement leave, employees may continue to require additional support or further time off. It may be that the bereavement has resulted in new care responsibilities, or has triggered mental health issues.
For clarity, employer responsibilities following the return to work should again be dealt with under the bereavement or absence policy, or where there is no such policy, follow the requirements under law. This includes not discriminating against someone by reason of a mental health disability resulting from the bereavement (such as depression or anxiety) and making reasonable adjustments where required to support with the return to work.
For example, this could include discussing flexible working arrangements to facilitate the return and adapting to their new circumstances following the bereavement. Employees with over 26 weeks’ employment can make one statutory request for flexible working in any 12 month period, or they can make any number of informal requests, although the employer will not have to meet the same standards when considering an informal request as under the statutory request process.
Can you refuse bereavement leave?
Bereavement leave is not an automatic entitlement. The employee will need to request the time off and their employer has to agree to the period being taken as bereavement leave. However, employees do have the right to take time off for family and dependants, as such the employer cannot refuse requests for reasonable time away from work to deal with such issues.
In practice, it is generally rare for employers to refuse bereavement leave, not least out of compassion, but where this is the case, the employee could then request to take the time off as annual leave or as unpaid leave.
An unreasonable refusal to grant time off may constitute grounds to bring a claim to the employment tribunal. Dismissing someone for this reason could be automatically unfair dismissal. Further, in circumstances where someone has been granted bereavement leave, their employer must not treat them unfairly for taking time off or for asking to take the time off, for example, refusing training or promotion.
Need assistance?
For managers, there is a balance to be achieved between supporting staff who have lost a loved one and minimising operational disruption. Being clear on what employees are entitled to and what you need to do to support your teams can help ensure a consistent and legally compliant approach while nurturing positive employee relations and supporting the return to work.
As specialists in business employment law, DavidsonMorris can provide guidance on workforce management and entitlements, including in relation to bereavement. For advice on a specific issue, contact us.
Bereavement leave FAQs
How many days off are you allowed for bereavement?
There is no general, statutory entitlement to bereavement leave, except in the case of parental bereavement. Employees should check their employment contract or their employer's relevant policy to understand how much time they can take off work, how to request leave and whether time off will be paid.
How much bereavement leave am I entitled to UK?
How much bereavement leave you may be entitled to will depend on your employer's bereavement policy and if you are entitled to statutory parental bereavement leave.
Last updated: 19 September 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals