Background to new parental bereavement law

UK employers are not at present legally required to provide paid leave for grieving parents. Employees merely have the right to take a “reasonable” amount of unpaid time off work to deal with an emergency, which would include the death of a dependant (section 57(A) of the Employment Rights Act 1996).

The Parental Bereavement (Leave and Pay) Act was enacted in September 2018, having originally been introduced as a private member’s bill. The Act has now been supplemented by two sets of regulations which flesh out how the new right will operate - the Parental Bereavement Leave Regulations 2020 and the Statutory Parental Bereavement Pay (General) Regulations 2020.

In summary, the legislation provides for:

• Two weeks’ parental bereavement leave (“PBL”) for working parents upon the death of a child aged under 18, or a stillbirth (from 24 weeks of pregnancy), irrespective of their length of service.
• Employees taking PBL will be entitled to statutory parental bereavement pay (“SPBP”), paid at the lower of £151.20 per week or 90% of their normal weekly earnings, so long as they meet certain qualifying criteria. Employers will administer SPBP in the same way as existing family-related statutory payments such as maternity, adoption and paternity pay.

These new rights are explained in more detail below.

Who is entitled to parental bereavement leave and pay?

PBL is a right available to an employee who meets the eligibility criteria (see below) from the first day of their employment. This is not the case for SPBP, which will only be paid to employees who have been continuously employed with their employer for 26 weeks prior to the death of the child, and who earned at least the lower earnings limit for the past eight weeks. (The lower earnings limit for 2019/20 is £118 per week, but the figure for the 2020/21 tax year is not yet known.) An employee who does not qualify for pay remains entitled to take PBL, but it will be unpaid.

Employees eligible for PBL include:

• A parent or intended parent of a child that has died (intended parent covers parents using a surrogate).
• A parent “in fact” - defined as an employee who has, for a continuous period of at least four weeks ending with the date of the child’s death, lived with the child in their own home with day-to-day responsibility for the deceased child’s care.
• A parent who is the child’s “natural parent” named under the Adoption and Children Act 2002 (or the equivalent legislation in Scotland).
• A person with whom the child has been placed for adoption, for so long as that placement has not been “disrupted” (as defined in the regulations).
• An adopter who the child was living with following the child’s entry into the UK for the purpose of adoption and who has received official notification in respect of the child.
• The partner of the child’s parent.

How much leave and pay will employees get?

A qualifying employee is entitled to two weeks’ PBL, with the minimum period of leave being one week. This means that the employee can take only one week, two periods of one week each, or two weeks’ consecutive leave. If employees lose more than one child, they are entitled to two weeks’ PBL in respect of each child - this includes situations where the children have died at the same time.

PBL can be taken at any time within a period of 56 weeks beginning with the date the child died, which allows for employees to take time off around difficult periods such as the child’s birthday or the anniversary of their death.

So far as SPBP is concerned, employees eligible for this will receive the lower of £151.20 per week or 90% of their normal weekly earnings.

What notice must be given to assert parental bereavement rights?

The notice provisions for PBL and SPBP have been criticised for their complexity. As with other family rights, such as maternity and adoption leave, there are separate notice requirements for the right to take leave and the right to receive pay. These are summarised in the table below.

What protections do employees have?

During any period of PBL, an employee’s terms and conditions will remain unchanged. This is apart from remuneration, as the employee will receive SPBP or no pay depending on their eligibility.

There are quite complex provisions in the legislation dealing with the right to return to work after PBL. In most cases, such as following an isolated period of PBL, the employee will be entitled to come back to the same job that they had before the leave. However, in certain other situations where PBL is combined with another period of statutory parental leave (e.g. maternity leave), the employee has the right to return to their role or, if it is not reasonably practicable for the employer to allow that, to another job that is “both suitable and appropriate for the employee to do in the circumstances”.

As expected, the legislation protects an employee from detriment or unfair dismissal by reason of taking or seeking to take PBL, or because the employer believes they are likely to take PBL.

How should employers respond?

Around 7,500 child deaths occur in the UK every year, including 3,000 stillbirths. The Government estimates that 10,200 parents per year will be eligible for PBL, while 9,300 of these will be eligible for SPBP as well. This is in the context of data suggesting only around two-thirds of businesses currently offer any form of bereavement leave.

While some organisations, particularly smaller ones, may be concerned about the imposition of fresh regulation, most employers are likely to be sympathetic to the need for employees to be properly supported through such a traumatic time.

In readiness for the legislation coming into effect in April, all employers should review their policies and practices and amend them as necessary to reflect the new rights, ensuring that managers and the payroll team are aware of the business’s obligations. The Government’s explanatory memorandum promises that draft guidance will be available ahead of 6 April 2020, and that Acas will be publishing guidance for employers too.

Many organisations will already have compassionate leave policies in place, which may be sophisticated and offer more generous entitlements to paid leave for bereaved employees than under the new legislation. It will still be important for such employers to weave the new PBL and SPBP entitlements into their policy in a clear and seamless way.

Those employers who do not currently have any written bereavement policy should investigate their current business practice when an employee’s child dies, which could vary and be dealt with informally. Businesses in this position may decide that now is a good time to grasp the nettle and introduce a formal policy incorporating the new rights and covering the issues surrounding bereavement in the workplace more generally. There is useful existing Acas guidance to assist with this (which we summarised in our previous article).