Parental bereavement leave and pay: Where are we up to?

The Parental Bereavement (Leave and Pay) Act 2018 finally made it onto the statute books this month.

The introduction of statutory paid leave for parents who have lost a child has been on the cards for some time. Draft legislation was first introduced into the House of Commons over a year ago, on 19 July 2017, proposing that bereaved parents who are employees should be entitled to two weeks’ leave to allow them to grieve away from the workplace.

Progress has been relatively slow, but the Parental Bereavement (Leave and Pay) Act 2018 finally received Royal Assent and made it onto the statute books on 13 September

However, while the basics are now in place, and the Government is now committed to introducing this new form of leave, much of the detail of the scheme is yet to be ironed out. The new Act is relatively sparsely drafted, and really acts as a vehicle for separate Regulations to be introduced at a later date to establish the nuts and bolts of how parental bereavement leave will work.

Indeed, the Government is still analysing feedback from a public consultation on the detail of the Parental Bereavement Leave Scheme (which ran from 28 March to 8 June 2018). No indication has been given of when we can expect the Government’s response to be published.

What do we know?

  • A minimum of two week’s leave will be available to all employed parents who lose a child under the age of 18. Employers may choose to provide a more generous period of leave. Leave must be taken within 56 days (8 weeks) of the death.
  • The right to leave will apply regardless of the employee’s length of service
  • The entitlement will apply in respect of each child. References to the death of a child also include a child stillborn after 24 weeks.
  • To be entitled to Parental Bereavement Pay, a parent’s earnings over a prescribed period must meet the ‘Lower Earnings Limit’ (currently £116 per week) and they must have at least 26 weeks continuous service with their employer.
  • Parental Bereavement Pay will be paid at a statutory flat rate (currently £145.18 per week) or 90% of weekly average earnings where that is lower.
  • An employee’s terms and conditions will be protected during a period of parental bereavement leave and there will be a right to return to work following absence. Further Regulations will provide employees with a right of redress in the event that they are dismissed or suffer some other kind of detriment as a result of taking this leave or seeking to take it.

What is still to be decided?

  • The definition of a ‘bereaved parent’
    The consultation acknowledges that clarity over eligibility is essential, but that it is also important that the new rules apply effectively to a diverse range of family circumstances. An appropriate definition will be set out in Regulations and will include circumstances where the employee is not a biological parent but has care of the child. It is envisaged that this will include adoptive parents, those who have obtained parental orders in the context of a surrogacy arrangement, step parents, and others who have a long term relationship with a child that is parental in nature.
  • How leave can be taken
    Regulations will also prescribe how leave and pay can be taken, for example in a single block of two weeks; two separate one week blocks; or more flexibly still (for example, in intermittent periods adding up to two weeks in total). The consultation acknowledges the difficulty of striking a balance between flexibility for families with varying needs and the need for employees to have a degree of certainty over when leave will be taken. It is important to note that statutory payments can usually only be claimed for periods of leave of one week or more.
  • Notice periods
    Existing family leave and pay rights (such as Paternity Leave and Pay) require notice to be given before leave is taken. However, where bereavement occurs, it may be impossible or very difficult to give notice. The consultation explored this sensitive issue and the final position will be set down in Regulations. It is unlikely that prescriptive notice requirements will be imposed, but Regulations might, for example, require an employee to notify an employer as soon as is reasonably practicable of their circumstances and how long they expect to be absent.
  • The approach to evidence
    It is yet to be established whether an employee will be required to provide evidence of their right to take Parental Bereavement Leave and pay (a requirement which would mirror existing family related leave and pay rights). However, again, the specific circumstances of bereavement might make a request for evidence inappropriate.

When will the new rules take effect?

The explanatory notes which accompany the Act indicate that the scheme is expected to take effect in 2020. Further Regulations, when they are published, will prescribe the precise implementation date.

In the meantime – be mindful of existing rights.

Existing provisions for other family related leave and pay rights, such as Maternity, Paternity and Shared Parental Leave and Pay will be unaffected by this statutory right. Parental Bereavement Leave and Pay will be a new, additional right.

Remember that, while there is currently no specific entitlement to leave or pay for employed parents following the loss of a child, a bereaved parent may be entitled to special or compassionate leave if provided by your workplace policies and procedures. Of course, granting compassionate leave on a discretionary basis is always an option.

Remember too that pregnant employees who suffer a still birth after at least 24 weeks of pregnancy remain entitled to up to 52 weeks’ statutory Maternity Leave and (subject to eligibility) up to 39 weeks of Statutory Maternity Pay. Employed fathers and partners can still take up to two weeks’ Paternity Leave and Pay in these circumstances.

Employees also have a ‘day one’ right to ‘reasonable’ time off work to deal with emergencies involving dependants (which will include taking time to make arrangements following a death). A child of any age will be a dependant for these purposes.

Dealing with a grieving employee can be upsetting and challenging for HR. ACAS have produced useful guidance on dealing sensitively with Bereavement in the Workplace, both in the immediate aftermath of a death and in the longer term.

Bereavement can of course give rise to a host of other workplace issues such as mental health problems, increased sickness absence or a downturn in performance. If you are struggling to manage a difficult case we would be happy to advise you.

Louise Singh (louise.singh@weightmans.com) is a Professional Support Lawyer supporting the Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions, please do not hesitate to contact Louise or speak to your usual Weightmans advisor.

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