Legal

Government proposes paid leave for bereaved parents

20 Oct 2017 By Emma Zarb

Legal expert Emma Zarb examines the main provisions of the parental bereavement bill

The Parental Bereavement (Pay and Leave) Bill is a private member’s bill, which, if passed, will establish a new right for employed parents to statutory paid leave on the death of their child, if aged under 18. The bill, which has the support of the government, was scheduled to be debated by parliament on 20 October, but is unlikely to become law until 2018 at the earliest.

The detailed text of the bill was published on 13 October. Under the proposals, any employee who is a ‘bereaved parent’ will be entitled to at least two weeks’ parental bereavement leave on the death of each child under the age of 18 regardless of that employee’s length of service. To qualify as a bereaved parent, an employee will need to satisfy certain prescribed conditions by reference to the care of the child before the child's death.

The period of parental bereavement leave will need to be taken before the end of the period ending 56 days after the date of the child’s death. Leave will be able to be taken in one block or as two consecutive periods, each of at least one week.

An employee will also be entitled to ‘statutory parental bereavement pay’ if they meet certain conditions (similar to the eligibility conditions for other types of paid family leave such as maternity, adoption, paternity and shared parental leave), including that they must have been employed for 26 weeks ending with the week immediately before the one in which the child dies and their normal weekly earnings for the period eight weeks before the week immediately before the child dies must not be less than the lower earnings limit in force at the time.

The statutory rate of pay will be the same as for other types of family leave (currently the lower of 90 per cent of an employee’s gross weekly earnings or £140.98 per week).

The employee will be required to serve a notice on the employer who is liable to pay statutory parental bereavement pay.

It is envisaged that an employee will have various protections while taking statutory bereavement leave (which will be similar to other statutory rights in relation to other types of family leave) including the right not to suffer detriment or dismissal as a result of taking such leave, the right to return to the same role on the same terms and conditions and the right to be offered suitable alternative employment in relation to a redundancy situation.

There is a power for the secretary of state to increase eligibility for parental bereavement leave to include a child stillborn after 24 weeks of pregnancy.

Whether or not the bill does become law, employers are always free to offer bereaved employees leave and pay in excess of their statutory entitlements.

At present (save in limited circumstances in relation to stillbirth or miscarriages in respect of which maternity or paternity leave may still apply), the law only allows for ‘reasonable’ unpaid time off to deal with an emergency relating to a dependant, including his or her death, and it is down to each employer to determine what is ‘reasonable’ in the circumstances. Acas has published guidance on dealing with bereavement in the workplace, but this is a good practice guide and not mandatory for employers.

The proposal is only a private member’s bill at present and many such bills fail to make their way into legislation. But this bill does have the backing of parliament and corresponds with the government’s pledge to enhance rights and protections in the workplace. Employers should keep an eye on the progress of the proposed legislation.

Emma Zarb is an employment associate at Dechert

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