Bereaved parents who have suffered the loss of a child will be entitled to two weeks’ statutory paid leave from work from 6th April 2020.
New statutory parental bereavement entitlement
The new Parental Bereavement Leave and Pay Regulations extend existing provisions under the Employment Rights Act 1996, which only allow employees to take ‘reasonable’ time off work, unpaid, for emergencies such as the loss of a child.
Under ‘Jack’s Law’, so-called after the son of bereavement campaigner Lucy Herd, the Government is introducing the most generous parental bereavement pay entitlement of any country in the world. All employees who lose a child under the age of 18 or who suffer a stillbirth after 24 weeks of pregnancy will have a ‘day one’ right to unpaid bereavement leave for a minimum of two weeks.
To be eligible for paid parental bereavement leave, parents and primary carers must have a minimum of 26 weeks’ continuous employment prior to the child’s death.
In addition, the two-week leave can be taken either together or in two separate blocks up until the first anniversary of the child’s death to afford parents more flexibility and breathing space following their loss.
Bereavement groups have welcomed the new rights, but are clear that this is a minimum entitlement, and that employers should look to support grieving employees beyond the statutory provision to allow parents to take care of the practical demands of losing a child, such as arranging the funeral, and to start to deal with the emotional trauma by, for example, spending time with their family.
By guaranteeing parents a minimum period of leave, it is hoped parents will be allowed breathing space without forcing an early return to work due to financial or work worries that is not in the best interests of the employee’s wellbeing.
Kevin Hollinrake, the MP for Thirsk and Malton, who proposed the law in a private member’s bill, said: “Losing a child is every parent’s worst fear, but no one could ever fully understand the utter devastation of such a loss. While most employers are compassionate and generous in these situations, some are not, so I was delighted to be able to help make leave for bereaved parents a legal right.”
Who is entitled to statutory parental bereavement leave?
Statutory parental leave will be available to all employed parents who have suffered the loss of a child under the age of 18.
The rights also extend to employed adults with ‘parental responsibility’, which includes adopters, foster parents and guardians, and kinship carers such as close relatives or family friends who have assumed responsibility for looking after a child.
Under the new law, employers will not be entitled to request a copy of the child’s death certificate as evidence of an employee’s right to the entitlement.
Bereavement leave following stillbirth
Employees who have suffered a stillbirth after the 24th week of pregnancy will also be entitled to the new statutory bereavement leave.
Additionally, where the child was lost after the 24th week of pregnancy or following birth, the mother will continue to be entitled to up to 52 weeks of maternity leave and/or pay, as will a mother who loses a child after it is born.
Statutory parental bereavement pay & leave
Parents and primary carers who have been employed for a continuous period of at least 26 weeks prior to when the child dies, and have received pay above the lower earning limit (£118 per week for 2019-20) for the previous eight weeks, are entitled to at least two weeks’ statutory paid leave (statutory rate of £148.68 per week [for 2019-20], or 90% of average weekly earnings, where this is lower).
Smaller employers will be able to recover all statutory parental bereavement pay, while larger organisations will be able to reclaim almost all of it.
Workers who have not been employed for a continuous period of at least 26 weeks are entitled to two weeks’ unpaid leave.
The two weeks’ leave can be taken either in one block of two weeks, or as two separate blocks of one week each. It must be taken within 56 weeks of the date of the child’s death. This is to allow for time to be taken off for difficult events such as birthdays or anniversaries.
Notice requirements for taking the leave will be flexible, so it can be taken at short notice.
The pay rate for bereavement leave is still to be confirmed, but is expected to be similar to the statutory rate for maternity/paternity leave.
If an employee loses more than one child, they will be entitled to take a separate period of leave for each child.
Key considerations for HR
Employers are advised to approach employee parental bereavement with compassion and consideration.
Be mindful of the impact of how the situation is handled on the employee’s wellbeing, return to work and wider team morale. There may also be legal risks to avoid, for example, refusing to allow an employee to observe their religious traditions and funeral rites could be deemed discrimination on religious grounds.
Different people handle grief in different ways, and while two weeks away from work may suffice for some employees, for others it may require a more flexible or alternative approach, such as offering further unpaid leave. In all instances, it is best to act with compassion and to be supportive.
Confirm with the employee how much or how little they wish to be divulged to other employees, to avoid data protection issues.
Continue to be supportive after the employee returns to work, to ensure any potential mental health issues such as PTSD or depression are supported, or identify whether reasonable adjustments may need to be made.
For the employee, easing any work worries can help the individual feel valued and supported, aiding the grieving process.
As specialist employment solutions lawyers, DavidsonMorris can advise on the implications of the new parental bereavement rights for your business. We can help to ensure your policies are compliant and your HR & managers are trained to deal with instances of employee bereavement effectively and with compassion. For practical guidance for your business, contact us.