Legal

New rules on bereavement leave and pay

11 Feb 2020 By Andrew Secker

Andrew Secker explains the implications of legislation that comes into force in April, and what employers need to be aware of

From 6 April 2020, all employed parents will have the right to two weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, irrespective of their length of service. Employed parents may also qualify for two weeks’ statutory bereavement pay (SPBP). 

Promoted as a world first, the law follows a 10-year campaign by Lucy Herd – whose son Jack drowned at 23 months old in 2010 – and charities to give parents greater support. 

Who qualifies for two weeks’ leave? 

The law will apply to all employed parents and adults with ‘parental responsibility’. While parental responsibility is a complex concept, generally speaking a primary carer of a child will have parental responsibility for that child. This can include adopters, foster parents and guardians, as well as close relatives or family friends that have informally assumed responsibility for the care of a child in the absence of parents. 

In the case of female employees who suffer a stillbirth after 24 weeks, they will remain entitled to the normal maternity leave and pay, as will those mothers who lose a child during maternity leave. If an employee loses more than one child, they will be entitled to separate bereavement leave for each child. 

How can the leave be taken? 

Leave is taken in a single block or two blocks of one week within the 56 weeks following the child’s death. 

The notice an employee must give will be flexible, allowing this to be at short notice. Notice can be requested to be in writing by an employer who will be paying SPBP. 

As with shared parental leave, employees can be asked to provide a self-declaration of entitlement. Understandably, employers will not be able to request the death certificate of a child to evidence that an employee qualifies. 

Who qualifies for SPBP? 

To qualify for SPBP, an employee must have at least 26 weeks’ continuous service and weekly average earnings over the lower earnings limit (currently £118 per week), for the eight weeks before the death. 

What is the rate of pay? 

Either the statutory rate (currently £151.20) or 90 per cent of average weekly earnings – whichever is lower.

How radical is this? 

While many workplaces offer a more generous entitlement, XpertHR research in 2018 suggested the median paid bereavement leave entitlement offered by an employer was five days. Therefore, what at first blush may look modest is actually a substantial improvement in the rights of many employees. 

Should businesses go further? Although covering those who suffer stillbirth after 24 weeks, there is no statutory right to leave in the event of a miscarriage or following the loss of a child over 18 or a partner, parent, sibling or grandparent. This creates an artificial dividing line as to whose loss you have a statutory right to leave and pay while grieving. 

In an age where the key priority is wellbeing and we are seeing an unprecedented rise in mental health issues, a forward-thinking employer may offer bereavement leave and pay in situations other than the loss of a child under 18. 

What do employers need to do? 

Employers will need to update or implement bereavement policies taking into account Acas guidance. The new policy should be communicated so staff are aware of their rights and managers do not unintentionally subject those seeking to exercise this right to a detriment. To avoid disputes, managers will also need to be informed that: 

  • the right to bereavement leave and pay is on top of the existing right to unpaid time off to care for dependencies, which gives a right to leave in the immediate aftermath of a loss of a dependant;
  • employees suffering prolonged grief may qualify as disabled persons under the Equality Act, such that this may necessitate reasonable adjustments;
  • requests for additional time off beyond two weeks to observe religious bereavement;
  • requirements (such as a funeral rite) should not simply be discounted but considered in line with the requirements of the Equality Act; and
  • data regarding the bereavement will need to be processed and retained in line with your privacy notices and policies. 

Andrew Secker is a partner at Mills & Reeve

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