New bereavement leave entitlements

Richard Brown analyses a new law on parental bereavement leave and outlines what it will mean for employers

The Parental Bereavement (Leave and Pay) Bill received Royal Assent in September, becoming the Parental Bereavement (Leave and Pay) Act 2018. Under the Act, employees will be entitled to two weeks’ leave following the death of a child which, subject to the relevant qualifying criteria, will be paid at the statutory rate. The Act sets out the framework for the right and will be supplemented by regulations, which are yet to be published. It is expected that the right will come into force in 2020.

Bereaved parents will be entitled to at least two weeks’ leave following the death of a child under the age of 18 or if they suffer a stillbirth from 24 weeks of pregnancy. This is a day one right – there are no qualifying criteria. The leave must be taken within 56 days of the death, although there is scope for the regulations to provide a longer period – e.g. within 12 months of the death.

Employees who have sufficient service and earnings will be entitled to statutory parental bereavement pay (the specific eligibility criteria mirrors that of paternity pay). The Government guidance states that the rate of pay will be the same as that of statutory paternity and shared parental pay.

Precisely who qualifies as a bereaved parent will be set out in the regulations, but the Act provides that it may be defined by reference to whether the employee was responsible for caring for the child before their death. This is in recognition of the fact that it is not only biological parents who may have a close relationship with a child. Employees who take bereavement leave will be entitled to the same protection as with other forms of family leave, such as protection from dismissal or suffering a detriment.

What does this mean for employers?

Given that the right is not expected to come into force until 2020, employers do not need to take any immediate action. It is likely to be premature to update any compassionate leave policies, as the precise details of the right are yet to be confirmed. 

In the meantime, employees will continue to have a statutory right to unpaid time off to deal with an emergency, which would include the death of a dependant. Many employees will also be entitled to paid time off following the death of a child under their employer’s compassionate leave policy. 

The government has said that the Act will provide a ‘safety net’ for employees, setting out their minimum rights in these circumstances. There is an acknowledgement that most employers will already give employees greater rights than are set out in the Act. The biggest impact is likely to be the protection against dismissal or detriment for having taken bereavement leave, but most employers are unlikely to dismiss or subject an employee to a detriment on these grounds in the first place.

While the provisions of the Act are welcome, the experience of losing a child is extremely stressful and employers should consider the employee’s mental welfare too. Poor psychological and mental health has significant costs to business and mental health is considered the priority health challenge for all employers. In this regard a business’s bereavement policy should dovetail with its mental health policy. For example, it should be considered whether the employee should be offered therapy to help cope with the overwhelming sense of loss and the unprecedented stress that this life-changing experience involves. 

Richard Brown is an employment partner at CMS