Lead Forensics
Prettys Solicitors Ipswich
1 2 3 4

Resources

Top

Parental Bereavement Leave – Eligibility, Entitlement and Notice requirements

February 2020

The draft regulations to The Parental Bereavement Leave and Pay Act 2018 have now been laid before parliament. These set out, in detail, the right for parents of children under the age of 18, who die on or after  6 April 2020 to take a statutory minimum of two weeks’ leave and (subject to a qualifying period of service) to receive Statutory Parental Bereavement Pay.

Whilst most reasonable employers are hugely sympathetic in such situations, compassionate leave is not a legal right and there may be instances when parents are denied the space and time to grieve.  In this E-briefing we consider the new regulations in more detail.

Eligibility

All employees will have a day one right to take two weeks’ Parental Bereavement Leave upon the death of a child.   This applies not only to natural and adoptive parents but also to those who are “intended” parents (such as those using a surrogate or a sperm donor), those who are fostering for adoption and those with whom the child has lived, in their own home, for a period of four weeks before their death and who had day to day responsibility for their care.

The right does not apply to those who are paid to look after a child (such as nannies or au pairs).

Length of leave

The maximum statutory entitlement is to two weeks’ leave in respect of each child who has died. This leave can be taken either consecutively or as two separate leave periods (in one week blocks), provided that all the leave is within 56 weeks of the child’s death.

Notice requirements

In order to take Parental Bereavement Leave, employees must give notice (Leave Notice) to their employer to inform them of:

The timing of the notification depends on when the employee wishes to take the leave.

Where leave is taken within the first 56 days after the child’s death, notice must be given before the employee is due to start work on the first day of absence (or as soon as reasonably practicable thereafter).

Where leave is taken after day 56, up to the longstop date of 56 weeks after death, one week’s notice must be provided.

A period of leave may be cancelled on one week’s notice but leave which has already started cannot be cancelled.

Rights during leave and returning to work

As with other types of statutory leave, during their absence employees are entitled to benefit from all their terms and conditions of employment (save for remuneration).

Where the leave has been taken as an isolated period or has been combined with other statutory leave (excluding parental leave), in respect of the same child but has not exceeded 26 weeks’ absence overall, the employee will have the right to return to the same job.  In all other cases, the employee will be entitled to return to the same job unless it is not reasonably practicable to do so, in which case they are entitled to return to a job on no less favourable terms and conditions.

Employees are also protected from detriment and dismissal for having taken, or sought to exercise, the right to take Parental Bereavement Leave.

Statutory Bereavement Pay

Employees who have at least 26 weeks’ service immediately preceding the week of the child’s death, and who meet the minimum earnings criteria, will be entitled to two weeks’ statutory Parental Bereavement Pay (currently £151.20 per week) or 90% of weekly earnings, if lower.

Employees must provide notification as per the details required for the Leave Notice, but including a declaration that they are an eligible “parent” as defined in the legislation.

Comment

Whilst these provisions are a welcome addition to family friendly legislation, the extent to which they will have any significant practical benefit remains to be seen.

Everybody who has ever lost anyone – child or adult – knows that you can’t place a timescale on grief.  It is an ongoing pain that rises and recedes with little warning.  A person’s capacity to deal with it is unique and personal to them.  

On the one hand, the regulations have endeavoured to reflect these issues:  they acknowledge that the first couple of months are likely to be the hardest, requiring time off at short notice; they acknowledge that the anniversary of a death can be particularly painful; and they also acknowledge that modern-day caring responsibilities and relationships often exist outside the traditional “nuclear” family model.

On the other hand, however, they seem to expect that a parent, facing one of life’s most tragic and challenging circumstances, will have the headspace to absorb and comply with the various notification requirements.  There is also the obvious riposte that everyone, no matter how old they are, is someone’s child.   

These are issues that may either be resolved as the legislation beds in or be addressed by employers themselves through their own policies and procedures.  Employers may decide to extend the provisions to a wider staff demographic; offer enhanced pay; and/or permit employees to take longer periods of both paid and unpaid leave.  This may be what the government is hoping for…or expecting.

Clearly, whatever happens, it will be important for employees to be able to access and understand their rights during such a traumatic period in their lives.  We recommend that, as a first step, employers advise staff of the raw principles of the new right and ensure they put in place clear policies, with step by step procedures and simple instructions, to guide their bereaved employees during these difficult times.

For further information please contact our Employment Team at employmentexpert@prettys.co.uk.

Sheilah Cummins

Associate

e scummins@prettys.co.uk

t 01473 298226

Legal 500LexcelConveyancingChambers UK