Paternity Leave (Bereavement) Act – the new law explained

Under the current law, bereaved partners can only take statutory paternity leave if they satisfy minimum service requirements. And paternity leave only lasts for a maximum of two weeks.

For partners dealing with the loss of their child’s mother in childbirth, the new Act will ensure statutory leave in the most painful of circumstances.  

Why was the Paternity Leave (Bereavement) Act proposed?

Statutory paternity leave lasts up to two weeks. To be eligible for statutory paternity leave under the current legislation, the employee must:

• have been continuously employed for 26 weeks by the qualifying date (which is about the 26th week of pregnancy in birth or surrogacy cases, and the week when they are matched with a child in adoption cases);
• be taking the leave to care for the child or support their partner; and
• not have already taken shared parental leave.

For bereaved partners who have not worked for their employer for 26 weeks, this leaves a clear gap in the law. Whilst it is always open to employers to allow their employees to take leave in these circumstances, there remains a risk that less scrupulous employers would not do so. 

In addition, there is clearly a strong argument that the limited amount of statutory paternity leave available in ordinary circumstances (just two weeks) falls a long way short of what is needed in cases where the child’s mother has died and the partner has become the primary caregiver. 

How will the Paternity Leave (Bereavement) Act change the law?

The Act started out as a Private Members’ Bill sponsored by a Labour MP and was originally known as the Shared Parental Leave and Pay (Bereavement) Bill. It gathered cross-party support and was one of the few pieces of draft legislation chosen to be rushed through to the statute book before parliament shut down for the election. 

The Act will: 

• Scrap the minimum service requirement for bereaved partners in cases where the mother of a newborn child has died. Bereaved parents of adopted children and children born through a surrogacy arrangement will also be covered. This means that paternity leave will become a ‘day one’ right for bereaved partners.
• Remove the condition preventing bereaved partners who have already taken shared parental leave from taking paternity leave. 
• Ensure that where both the mother and child die, bereaved partners will still be able to take leave, despite the fact that leave cannot be taken to care for the child or support the mother. 
• Allow for regulations which permit a bereaved partner to take ‘keeping-in-touch days’ -  commonly known as KIT days - without bringing their period of leave to an end. The Act has also kept open the possibility for regulations regarding the potential redundancy of a bereaved employee after they return to work. 

Although the primary focus of the Act is making paternity leave a ‘day one’ right for bereaved partners, there is also a plan to increase paternity leave for bereaved partners from two weeks to 52 weeks, according to the Labour MP who sponsored it.  The Act itself does not include this increase, but the intention appears to be for this to happen through additional regulations.

Before any of the new paternity leave rights under the Act can come into force, further regulations need to be made. In practice, this means that the Act will need to be implemented by the new government after the election.

The Act will apply in England, Wales and Scotland. It will be for the Northern Ireland Assembly to decide whether similar legislation should be extended to Northern Ireland. 

What are the practical implications for employers?

In the UK, there are around 180 maternal deaths a year within 12 months of childbirth according to the debates on this Act in the House of Commons. The Act will therefore only apply in a very small number of cases. Nonetheless, it is important for employers to be aware of the new legislation and - in due course - update their policies if necessary. 

If the Labour party win the general election, the current 26-week service requirement for statutory paternity leave could ultimately be scrapped for all employees, not just bereaved partners, as part of the plan to introduce more ‘day one’ employment rights.  This aspect of the new law might therefore be overtaken by events.

In reality, the majority of responsible employers would generally allow bereaved partners to take leave in any event, either under existing policies or at their discretion.  The new law will, however, provide a minimum statutory floor and (assuming the idea of 52 weeks’ leave is implemented) set the standard for how much leave should be afforded in these circumstances.

The Act only provides access to leave, rather than pay. It’s not clear if rights to pay will also be extended, and this may be something that is addressed by a new government.