Parental bereavement bill receives royal assent

Background

It has been estimated that one in ten employees are likely to be affected by bereavement at any one time.  The death of a child can have a devastating effect on parents’ 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 a third of British adults who were working at the time of their bereavement said they had felt very supported by their employer, so there is evidently scope for improvement in management practice in this area.

There is currently no legal requirement in the UK for employers to provide paid leave for grieving parents. Employees have a “day one” right, under section 57(A) of the Employment Rights Act 1996, to take a reasonable amount of unpaid time off work to deal with an emergency (which would include the death of a dependant). There is no definition of “reasonable” for these purposes and it will depend on the circumstances. Disagreements between the employee and employer regarding the appropriate length of leave can potentially arise. 

The new Act

Although this legislation started off as a private member’s bill, it was supported by the Government who said:

“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 2018 (the “Act”) will be required to set out the details of these new rights.  However, the Act provides that:

• A bereaved parent is entitled to take at least 2 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 blocks of 1 week 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 part) by reference to the employee’s care of the child before he/she died (Regulations will provide more detail on the 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 (the requirement to give notice and provide evidence) will be set out in Regulations. 
• The rates of pay are also to be determined by the Regulations but in order to receive pay (rather than be able to take leave), a parent must have at least 26 weeks’ service and received pay above the lower earnings limit for the last 8 weeks.

What can employers do now?

ACAS 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 makes the point that advance planning and training will ensure that managers are better prepared to deal with what can be a difficult issue to negotiate. Further useful recommendations include:

• 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 always 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 might be approached by journalists etc.
• 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 might 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. Requests for time off or increased sickness leave should therefore 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.

The Parental Bereavement (Leave and Pay) Act 2018 can be accessed here.