Before April 2020, employees throughout the UK had no statutory entitlement to paid leave in the tragic circumstances of suffering the loss of a child under 18. This position changed in Great Britain on 6 April 2020 with the introduction of regulations implementing the Parental Bereavement (Leave and Pay) Act 2018.

Equivalent provisions were laid before the Northern Ireland Assembly following its resumption in January 2020, and the Parental Bereavement (Leave and Pay) Bill (the Bill) passed its final consideration stage on 7 February 2022. It will therefore receive Royal Assent and become law regardless of whether the Assembly continues to operate within its current mandate. Further details will be confirmed in regulations (the NI Regulations).

The Bill

The Bill provides Northern Irish employees with the same entitlements to leave and pay as in Great Britain.

In summary, eligible employees will be entitled to:

• Two weeks’ parental bereavement leave;

• Payment during leave at the minimum statutory rate; and

• Protection from dismissal or detriment as a result of exercising their entitlement.

Following further consultation and agreement on subsequent regulations, these provisions are to be extended to include working parents who suffer the loss of a child through miscarriage.

Who will be eligible for parental bereavement leave?

Parental bereavement leave (PBL) will be day one employment right for eligible parents on the loss of a child aged under 18.

The Bill confirms that PBL will be available to any “bereaved parent”. The precise definition will follow in the NI Regulations but will be “framed by reference to the employee’s care of the child” before their death.

Under the equivalent regulations in Great Britain, eligible employees include:

• Biological parents and intended parents (i.e., parents using a surrogate);

• Adoptive and “natural” parents;

• Parents “in fact” who lived with the child and had day-to-day care responsibilities for at least four weeks preceding their death; and

• The partner of the child’s parent who lives with the child and the child's parent in an enduring family relationship.

We expect the NI Regulations to take a similar or identical approach.

Who will be eligible for parental bereavement pay?

Parental bereavement pay (PBP) will be available to eligible employees with at least 26 weeks’ continuous employment, by the end of the week before the week of the child’s death.

Employees will be entitled to PBP if:

• They are a “bereaved parent”;

• They are in employment on the day the child dies; and

• They meet the weekly earnings threshold.

The weekly earnings threshold will be met if the employee’s normal weekly earnings for any continuous 8-week period falling either before or after the child’s death is not less than the lower earnings limit.

The lower earnings limit will be set by subsequent regulations for each tax year, in the same way as other statutory pay entitlements. In Great Britain, it is currently £120 (gross) per week.

By April 2026, the requirement to have 26 weeks’ continuous employment to qualify for PBP is to be removed.

How much leave and pay will they receive?

Eligible employees will receive a minimum of two weeks’ paid leave, to be taken within a minimum 56-day period following the child’s death. In cases where more than one child dies, the employee is entitled to leave and pay in respect of each child.

In Great Britain, PBL must be taken within 56 weeks of the child’s death, to allow employees flexibility to take leave on sensitive occasions such as the child’s birthday etc. The NI Regulations may take a similar or identical approach.

Leave can be taken in blocks of seven days, which may be consecutive or non-consecutive.

Employees will be entitled to PBP at the minimum statutory rate, which again will be set by the NI Regulations. In Great Britain, employees currently receive either £151.97 a week or 90% of their average weekly earnings, whichever is lower.

What notice should employees give?

Employees must give sufficient notice before taking leave. Again, this will be confirmed in the NI Regulations. In Great Britain, the amount of notice depends on when leave is taken:

• For leave within 56 days of the child’s death, notice must be given before the first working day that will be taken as PBL or as soon as reasonably practicable; and

• For leave after 56 days of the child’s death, at least one week before leave is due to start.

For PBP, employees in Great Britain must give notice that they will take PBL, at least 28 days before the first day of paid PBL, or as soon as reasonably practicable.

Position on miscarriage

The regulations in Great Britain currently extend PBL and PBP to stillbirths occurring from the 24th week of pregnancy, but do not deal with loss of a child through miscarriage before this threshold is reached.

However, in Northern Ireland, the Bill provides that equivalent rights to leave and pay for employees who suffer a miscarriage will be implemented, subject to agreement on the regulations, no later than April 2026. This means that Northern Irish employees will enjoy greater statutory protection than their comparators in Great Britain.

Indeed, the Minister for the Economy has indicated that Northern Ireland will be the first jurisdiction in Europe to legislate for miscarriage leave and pay in this way.

Employee protection rights

Employees are protected from detriment or dismissal as a result of exercising or attempting to exercise their rights, in the same way as with other statutory “family leave” types such as maternity, paternity or shared parental leave and pay.

If the position is the same as in Great Britain, employees should generally have the right to return to work in the same role as before beginning their PBL, except in certain circumstances where leave is taken consecutively with other types of statutory leave, such as maternity leave or shared parental leave. In these circumstances, the employee is entitled to return to the same role, or if not reasonably practicable, to a role which is suitable and appropriate.

Implications for employers

Given the previous lack of legislative guidance on this sensitive aspect of the employment relationship, employers will welcome the certainty of a set statutory framework, allowing them to treat employees fairly and consistently.

It can also be hoped that PBL will have a long-term benefit for employee wellbeing and mental health and may reduce the need for employees to take extended periods of unpaid or sickness absence in these unfortunate circumstances.

In terms of next steps:

• Employers in Northern Ireland should be ready to implement this change in April 2022.

• Larger employers may already have well established policies for compassionate leave and should review these to ensure that they properly incorporate the statutory parental bereavement scheme.

• Employers who operate across the United Kingdom may already be providing PBL to Northern Irish employees but should be mindful of any differences which emerge between Northern Ireland and Great Britain, and especially the availability of miscarriage leave and pay once this is implemented.

More generally, as Northern Irish employment law has remained largely static in recent years, HR practitioners will welcome this development, which addresses one area of the growing divergence between Northern Ireland and the rest of the United Kingdom.

It is worth noting that on passage of the Bill in the Assembly, the Minister for the Economy commented that “There will, no doubt, be further employment Bills brought before the House in the coming years”.

Employers will be aware that Northern Ireland has not implemented several recent developments in Great Britain, including gender pay gap reporting, and this comment may reflect a willingness to address this imbalance further in the next Assembly mandate.