Government reforms (1):  Parental bereavement leave

What do we already know?

We have updated you in previous Newsletters (see here) on Government plans to introduce parental bereavement leave.

What’s new?

The Parental Bereavement Leave Regulations 2020 are now in force and from 6 April 2020 employers are required to provide leave (and in some cases pay) to grieving parents.

What is the right to leave?

All employees will be eligible for parental bereavement leave if, after 6 April 2020, they suffer either the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy, and they are:

• the child’s parent (or adoptive parent);
• the child’s natural parent (where the child has been adopted but there is a court order for contact between the child and the natural parent);
• a prospective adopter;
• an intended parent under a surrogacy arrangement;
• a parent ‘in fact’ (who is someone looking after the child in that person’s own home for the last four weeks but who is not a paid foster carer); or
• the spouse/partner/civil partner of someone meeting one of the eligibility requirements.

The entitlement is two weeks’ leave in the 56 weeks following the loss and may be taken as a single two-week block or two one-week periods.

Both parents are entitled to take the leave and, in the unfortunate circumstance that more than one child has died, leave may be taken in respect of each child.

During leave, the employee remains entitled to the benefit of all of their terms and conditions of employment (other than salary) and will generally have the right to return to the same job.  The employee will also be protected from detriment/dismissal on the basis of having taken (or seeking to take) parental bereavement leave.

What is the right to pay?

To be eligible for statutory parental bereavement pay, employees must have accrued 26 weeks’ continuous service, have weekly average earnings over the lower earnings limit (£120 per week for 2020/21), and provide the correct notice (see below).

As at 6 April 2020, statutory parental bereavement pay will be paid at the rate of £151.20 per week (for 2020/21) or 90 percent of an employee’s average weekly earnings (whichever is the lower amount).

What notice is required for leave?

To take bereavement leave, employees will need to give notice to their employer of:

• the date of the child’s death;
• the intended start date for the leave; and
• length of leave (i.e. one or two weeks).

If the parental bereavement leave starts within 56 days of the day on which the child died, the employee must provide the notice before their normal start time on the first day of absence (or, where that is not possible, as soon as reasonably practicable).

However, if the employee’s parental bereavement leave starts between 56 days to 56 weeks following the child’s death, they must provide a week’s notice to the employer.

The notice does not need to be in writing and, unlike notice of other forms of statutory leave, the employee does not need to give written notice (even if the employer requests it).

What notice is required for pay?

In order to receive statutory pay for the bereavement leave, the employee must give written notice to their employer of:

• their name;
• the date of the child’s death;
• the week/s in respect of which payment is to be made; and
• a declaration that they meet the eligibility criteria to receive statutory parental bereavement pay.

This notice should be given within 28 days of the first day of bereavement leave for which the pay is to be made (or as soon as reasonably practicable).

What are the implications for employers?

If you have not already done so, we recommend reviewing and updating any existing compassionate or bereavement leave policies to clarify and accommodate the new leave and pay entitlements.

The introduction of parental bereavement leave is a good opportunity to introduce a policy (if you don’t have one) which incorporates the new rights and provides clarity on how the issues surrounding bereavement are dealt within the organisation.   For helpful ACAS guidance on dealing with bereavement in the workplace see here.

Managers will also need to understand the definition of parent for the purposes of taking parental bereavement leave so they do not turn down requests from employees who fulfil this wide definition on the misunderstanding it only applies to birth or adoptive parents.

Employers should also make their managers aware that employees have the right not to suffer any disadvantage by taking bereavement leave and have the right to claim unfair dismissal if they are dismissed because they have taken or wished to take bereavement leave.