Right to paid parental bereavement leave is coming

Background

It has been estimated that one in ten employees are likely to be affected by bereavement at any one time. Clearly, 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.

Currently, there is 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. 

Previous attempts to introduce paid parental bereavement leave over the past few years have been unsuccessful, including a private member’s bill which would have entitled employees to two weeks’ paid leave if they lost a child under 18.

The new Bill

The Parental Bereavement (Pay and Leave) Bill (“the Bill”) was introduced into the House of Commons on 19 July 2017 by Conservative MP Kevin Hollinrake. It yet been has not been published, but we know that its primary purpose will be to give employed parents a statutory right to paid time off to grieve the death of their child.

The Bill is supported by the Government and its content and detail will be discussed within Parliament over the coming months. The Department for Business, Energy and Industrial Strategy has said that it will “be working with businesses, employee representatives and campaigners on behalf of working families to better understand needs of bereaved parents and employers”. The Bill is scheduled to have its second reading in the House of Commons on 20 October 2017, when we can expect to receive details of the statutory pay and period of parental bereavement leave that are envisaged.

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

Naturally, employees will respond to bereavement in different ways. Some will welcome a swift return to work to restore an element of normality, while others will need to take more time. Katie Koehler of Child Bereavement UK regards the Bill as a way of giving parents more choice: “The opportunity for leave at a time that feels right for them as individuals would reduce one source of possible additional stress and paid leave would give parents the time to make decisions based on their needs rather than their financial situation.”

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 confusing 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 (such as the 40-day Iddah to mourn a husband).
• 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.