What is the new right to parental bereavement leave?

A right to two weeks’ statutory parental bereavement leave will be introduced on 6 April and in our article on this important topic we consider who is entitled to the leave, when it will be paid and what the implications are for employers.

In January, the Government published draft Regulations to implement Parental Bereavement Leave and Statutory Parental Bereavement Pay, setting out the new rights which will enable employees to take time off work in the event of the death of a child. We take a look at the scope of the Regulations and what they mean for employers.

When do the Regulations come into force?

Both the Parental Bereavement Leave Regulations 2020 (PBL) and the Statutory Parental Bereavement Pay (General) Regulations 2020 (SPBP) will come into force on 6 April 2020 and cover deaths or stillbirths occurring on or after 6 April 2020.

What is Parental Bereavement Leave?

PBL is a period of one or two weeks’ leave that may be taken at any time within 56 weeks of the death of a child. A child is defined as a person under the age of 18, but also includes babies that are stillborn after at least 24 weeks gestation (the date of death being the date of the stillbirth). PBL may be taken as: one whole week; two consecutive weeks; or two separate weeks taken at different times and may start on any day of the week. In a situation where a parent loses more than one child the employee is entitled to PBL in respect of each child.

Who is eligible?

PBL is only available to employees and is not available to other workers, agency workers or self-employed contractors.

There is no minimum period of service therefore the right is applicable from day one of employment.

In terms of who is considered a “bereaved parent”, the Regulations are widely drafted to cover most types of parental or quasi-parental relationships. The following employees will be eligible:

• Parents, including adoptive parents and those who become parents under statutory provisions on surrogacy and fertility treatment.
• A child’s natural parent in situations where the child has been adopted but there is a court order for the child to have contact with their natural parent.
• A person with whom a child has been placed for fostering or adoption.
• A person living with a child who has come from overseas and has received official notification that they are eligible to adopt the child and who intend to do so.
• An intended parent under a surrogacy arrangement where a parental order is expected to be made.
• “A parent in fact”. This is a new concept and is defined as a person who has been living with and has day-to-day responsibility for a child, for a continuous period of at least four weeks before death. This would include guardians and foster parents but would not include a paid carer (other than a local authority foster carer). This would also not apply if the child’s parent or anyone with legal responsibility is also living in the home. This therefore excludes older siblings unless neither parent is living at the home with the child.
• The partners of any of the above are also included. This means anyone living with one of the above defined persons in an “enduring family relationship” but is not the child’s parent, grandparent, sibling, aunt or uncle.

How and when can leave be taken?

PBL may be taken at any time within 56 weeks of the death. The rationale behind this extended period is that it is anticipated that parents may wish to take their second week of leave around the date of the first anniversary of the death.

PBL should be taken in whole weeks (which is defined as a period of seven days) and although not specified, it is implied that even if an employee takes fewer than seven days leave this would still count as a whole week against their statutory entitlement.

That being said, there is nothing to stop employers from giving parents more flexibility and allowing PBL to be taken in days instead of weeks, however employers should be wary of any potential repercussions when it comes to the calculation of Statutory Parental Bereavement Pay (SPBP).

In order to exercise the right to PBL employees must give their employer notification of the following:

• The date of the child’s death;
• The date they wish their leave to start; and
• Whether they intend for the leave period to be one or two weeks.

There is no requirement for how an employer is to be informed nor for the employee to provide evidence of the death, so even informal notification such as a phone call will be sufficient to take PBL. However, the Regulations do stipulate the length of notice employees must give, depending on how soon after the child’s death the PBL is being taken. The time frames are as follows:

• Period A: the first 56 days – if PBL is to be taken within the first 56 days of the death there is no notice period required and leave can start straightaway. While in practice this means employees should inform their employers by the time they are due to start work on the first day of leave, the Regulations recognise this is not always feasible so notice can be given as soon as it is “reasonably practicable” to do so.
• Period B: after 56 days – if PBL is to be taken more than 56 days after the death, employees must give at least one weeks’ notice of their intention to take PBL.

An employee can cancel or change the date of their PBL and if it is to be taken within Period B, it can be cancelled by giving one weeks’ notice. However PBL cannot be cancelled once it has started.

What is Statutory Parental Bereavement Pay?

Employees who take PBL may also be entitled to SPBP so long as they meet the criteria for eligibility and provide certain notifications and evidence. The key provisions relating to employee eligibility are below:

• The employee must have at least 26 weeks’ continuous employment.
• Have normal weekly earnings, in the eight weeks prior to the child’s death, which are no less than the lower earnings limit for National Insurance Contributions (currently £118 per week 2019/2020).
• Must give their employers notice of the weeks in which they intend to claim SPBP. This notice should be given before the end of a period of 28 days starting on the first day for which they are claiming SPBP (although where this is not feasible it can be given as soon as “reasonably practicable”). This notice does not need to be in writing.
• When giving notice, the employee must provide evidence to their employer of their name, the date of the child’s death and a declaration in writing that they have a relationship with the child which entitles them to the SPBP.

SPBP will be paid at the same rate as statutory paternity pay (£151.20 per week from 6 April 2020) or 90% of weekly earnings if lower. However, employers can choose to increase this to bring it in line with their own compassionate leave policies.

How does PBL and SPBP interact with other rights?

Maternity/paternity leave – parental bereavement leave and SPBP have no effect on maternity leave or paternity entitlement which is still available to employees in the event of a stillbirth from 24 weeks of pregnancy.

Time off for dependants – there is a current statutory right to time off for dependants which allows for a reasonable amount of unpaid leave to take “action which is necessary…as a consequence of the death of a dependant”. Subsequent case law has held that this only enables employees to deal with logistical matters arising as a result of the death including arranging and attending the funeral. It has been emphasised that this is not the same as compassionate leave. Employers therefore need to consider how the new PBL rights will interact with the existing rights to time off. For example, an employee may wish to take a day or two of unpaid leave for logistical reasons, such as to attend the funeral, rather than using a whole week of PBL, to which they are additionally entitled.

Terms and conditions of employment – consistent with maternity, adoption, paternity and shared parental leave, the employee retains the benefit of all their terms and conditions save for remuneration.

Statutory sick leave – SPBP is not payable in any weeks in which the employee is entitled to statutory sick pay, even for just part of the week.

What do employers need to do about parental bereavement leave?

The first thing employers must do is start updating their family-related and compassionate leave policies, particularly given the relatively short time until the Regulations come into force.  Employers may wish to consider either incorporating these new rights into existing policies or introducing an entirely separate policy.

The death of a child is one of, if not, the worst things that can happen to someone and therefore it is important that employers deal with employees who are bereaved in a sensitive and compassionate manner.  The Regulations set out a minimum in terms of leave and pay entitlement but employers are free to exercise flexibility and offer more than required by statute in order to support bereaved parents. If, for example, existing compassionate leave policies allow for full pay for at least the same amount of time off, employers may wish to consider paying the same during PBL instead of only SPBP. Employers should also think about what they will do in a situation where the relevant notice requirements are not met – will they pay SPBP anyway? Employers need to take care when drafting any new policy or when amending any existing compassionate leave policy to ensure that they do not inadvertently provide for both compassionate leave and PBL.

Additionally and importantly, employers need to be aware of mental health issues arising after a child’s death, such as PTSD and depression, and remember that, depending on the circumstances,   these can constitute a “disability” under the Equality Act 2010. Employers should be aware that reasonable adjustments may be required and be prepared to offer support such as counselling.

Significantly, employers also need to be aware that employees are protected from detriment and unfair dismissal while exercising their right to PBL. Any dismissal will be automatically unfair if the reason or principal reason for dismissal relates to the employee taking or seeking to take PBL or the employer believed the employee was likely to take PBL. No qualifying period of service is needed for an employee to bring a claim for automatic unfair dismissal in this regard.

If you have any questions or need advice on the new parental bereavement leave regulations please get in touch with your usual Blake Morgan contact or any member of the Employment team.

This article has been co-writtten by Nia Pawley and Rachael Thomas.