- 6 minute read
- Last updated: 8th October 2019
If you have recently lost a loved one, you may be worried about what this means for taking time off work.
In this guide, we look at the rules on bereavement leave, and specifically if you are permitted to be absent following a bereavement and whether you will be paid for this period of absence.
This article covers:
- What does the law say about bereavement leave?
- How do I take bereavement leave?
- Will I be paid during bereavement leave?
- How long is bereavement leave?
- Can I take additional time off work?
- Bereavement leave for stillbirth or miscarriage
- What is parental bereavement leave?
- What if your employer refuses bereavement leave?
- Returning to work after bereavement
- Specialist guidance on bereavement leave rights
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.
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 for dependants, including to care for a dependant who falls ill or following the death of a dependant.
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.
By law, all employees are entitled to take time off work to deal with emergencies and issues relating to a ‘dependant’. This extends to leave to arrange or attend a funeral.
In most cases, employers will 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.
Your employer’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?
If your employer does not have a bereavement policy, they will be required to follow the law, and act reasonably and consistently in doing so.
Employees also have the right for their bereavement to be kept private. If you do not want the bereavement to be disclosed to your work colleagues, you should make this clear to your employer when informing them of your reason for absence.
Where you have been granted bereavement leave, your employer must not treat you unfairly for taking time off, for example, refusing you training or promotion. Needless to say, your employer must also not select you for redundancy because you asked for time off. In the event that you have been treated unfairly for taking bereavement leave, you should seek professional advice on your legal options.
As an employee, you are not automatically entitled to be paid time off for bereavement leave. That said, many employers do offer provision for paid leave in the event of a bereavement in support of employee wellbeing. 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.
Again, you should check the terms of your employment contract and any separate organisational absence or bereavement leave policy that may be in place. Your organisation may also take a discretionary approach in light of your personal circumstances and personnel record.
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 you can take for bereavement leave would usually be documented within your 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, your employer should 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 your relationship to the deceased and the circumstances of the death, for example, where unexpected or especially traumatic.
Your employer should also respect and accommodate your 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 you are absent from work, your employer is under a duty to maintain reasonable contact with you and to support your return to work while respecting your physical and mental wellbeing.
Where you are looking to take extended time away from work as a result of your bereavement, perhaps to give yourself additional time to grieve or to support a bereaved child, you should discuss your options with your employer. It is always best to have an informal chat with your employer rather than taking leave of absence without explanation or on the basis of ill health.
Extended bereavement leave will be at your employer’s discretion and will usually be unpaid. If your absence is due to ill health, for example depression as a consequence of the bereavement, you should inform your employer and provide any advice from your GP such as a sick note as you may be entitled to take the time off as sickness absence and be paid under your sick leave entitlement.
It is important to remember that by returning to work too quickly, this may affect your ability to perform some or all of your work-related tasks. A compassionate employer may make some allowance for this, not least because it is often in their interests to be flexible when it comes to supporting valued employees during such an emotionally difficult time.
It may be possible to discuss options to use your entitlement to paid annual leave or whether a flexible working arrangement may offer a workable solution, particularly if you have new caring responsibilities following your loss.
Employees become 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.
A new law, the Parental Bereavement (Leave and Pay) Act is due to come into force in April 2020. Under the new rules, parents and primary carers who have lost a child under the age of 18 will be entitled to at least two weeks’ statutory paid parental bereavement leave.
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 yet to be set but may be in line with the statutory rate for maternity/paternity pay.
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 new law will also apply to employees who suffer a stillbirth after 24 weeks of pregnancy, continuing the right to 52 weeks of maternity leave and pay.
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.
Employers will usually recognise that on returning to work after bereavement leave, you may continue to require additional support or further time off. It may be that the bereavement has resulted in new care responsibilities for you, or has triggered mental health issues.
Your employer’s responsibilities following your return to work should again be dealt with under its bereavement or absence policy, or where there is no such policy, they must follow the requirements under law. This includes not discriminating against you 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 your return to work.
You may also consider flexible working arrangements to facilitiate your return and to adapt to your new situation 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.
Bereavement leave is not an automatic entitlement. You will need to request the time off and your employer has to agree to the period being taken as bereavement leave. It is generally rare for employers to refuse bereavement leave but where there is the case, you can request to take the time off as annual leave or as unpaid leave.
However, employees do have the right to take time off for family and dependants, as such your employer cannot refuse you reasonable time away from work to deal with such issues.
If you are refused reasonable time off, you may be able to bring a claim to the employment tribunal. If you are dismissed for this reason, it would be automatically unfair dismissal. Further, in circumstances where you have been granted bereavement leave, your employer must not treat you unfairly for taking time off or for asking to take the time off, for example, refusing you training or promotion. Needless to say, your employer must also not select you for redundancy because you asked for time off.
You must tell Acas, ie; the Advisory, Conciliation and Arbitration Service, that you intend to make a claim to the tribunal. You will first be offered the opportunity to try to settle the dispute with your employer by using the ACAS Early Conciliation service. If early conciliation does not work or you choose not to use the service, you will be issued a certificate enabling you to start tribunal proceedings within one month.
Dealing with work issues may be the last thing on your mind following the loss of a loved one, but to avoid issues at work, it will be important to understand what you are entitled to and what you need to do to keep your employer informed about your circumstances and to help support your eventual return to work.
As the law offers little clarity on bereavement leave, your entitlement will be determined by your employer’s discretion and any organisational policies that are in place.
As specialist employment lawyers, DavidsonMorris can advise on your ability to take time off work and be paid following a bereavement. We also specialise in related issues such as disability discrimination following bereavement, making flexible working requests and long-term absence from work. For advice on your rights at work, contact us.