The government has finalised the legislation to implement an entitlement to two weeks' paid bereavement leave for working parents who lose a child aged under 18. The new right will come into force with effect from 6 April 2020.

Background

Presently, UK employers are not legally required to provide paid leave for grieving parents. Employees merely have the right to take a reasonable amount of unpaid time off work to deal with an emergency, which would include the death of a dependant (Section 57(A) of the Employment Rights Act 1996).

The Parental Bereavement (Leave and Pay) Act was enacted in September 2018 (for further details please see "Parental bereavement bill receives royal assent"), having originally been introduced as a private member's bill (for further details please see "Right to paid parental bereavement leave is coming"). The Parental Bereavement (Leave and Pay) Act has now been supplemented by two sets of regulations which flesh out how the new right will operate: the Parental Bereavement Leave Regulations 2020 and the Statutory Parental Bereavement Pay (General) Regulations 2020.

The legislation provides for:

  • two weeks' parental bereavement leave (PBL) for working parents upon the death of a child aged under 18 or a stillbirth (from 24 weeks of pregnancy), irrespective of their length of service; and
  • statutory parental bereavement pay (SPBP) for employees taking PBL, which will be paid at the lower of £151.20 per week or 90% of their normal weekly earnings, so long as they meet certain qualifying criteria (see below). Employers will administer SPBP in the same way as existing family-related statutory payments such as maternity, adoption and paternity pay.

Who is entitled to PBL and SPBP?

PBL is a right available to employees who meet the eligibility criteria from their first day of employment. This is not the case for SPBP, which will be paid only to employees who:

  • have been continuously employed with their employer for 26 weeks prior to the death of their child; and
  • earned at least the lower earnings limit for the eight weeks prior to the death of the child (the lower earnings limit for 2019/2020 is £118 per week but the figure for the 2020/2021 tax year is still unknown).

Employees who do not qualify for pay remain entitled to take PBL, but this will be unpaid.

Employees eligible for PBL include:

  • the parent or intended parent (including parents using a surrogate) of a child that has died;
  • a parent 'in fact' – defined as an employee who has, for a continuous period of at least four weeks ending with the date of the child's death, lived with the child in their own home with day-to-day responsibility for the deceased child's care;
  • a parent who is named as the child's natural parent under the Adoption and Children Act 2002 (or the equivalent legislation in Scotland);
  • a person with whom the child has been placed for adoption, as long as that placement has not been 'disrupted' (as defined in the regulations);
  • an adopter with whom the child was living following the child's entry into the United Kingdom for the purpose of adoption and who has received official notification in respect of the child; and
  • the partner of the child's parent.

How much leave and pay will employees get?

A qualifying employee is entitled to two weeks' PBL, with the minimum period of leave being one week. This means that the employee can take one week, two periods of one week each or two weeks' consecutive leave.

If employees lose more than one child, they are entitled to two weeks' PBL in respect of each child. This includes situations where the children die at the same time.

PBL can be taken at any time within a period of 56 weeks, beginning with the date on which the child died. This allows employees to take time off around difficult periods, such as the child's birthday or the anniversary of their death.

As far as SPBP is concerned, eligible employees will receive the lower of £151.20 per week or 90% of their normal weekly earnings.

What notice must be given to assert parental bereavement rights?

The notice provisions for PBL and SPBP have been criticised for their complexity. As with other family rights, such as maternity and adoption leave, there are separate notice requirements for the right to take leave and the right to receive pay. These are summarised in the table below.

PBL

SPBP

An employee must notify their employer of their intention to take PBL and specify:

  • the date on which the child died;
  • the date on which the employee wants the leave to begin; and
  • whether the PBL period is one week or two weeks.

An eligible employee must serve notice of their intention to take PBL in order to receive SPBP and specify:

  • their name;
  • the date on which the child died;
  • the week or weeks in respect of which payment is to be made; and
  • a declaration that the employee meets the qualifying conditions.

This information should also be provided to the employer at the same time.

If the PBL starts within 56 days of the day on which the child died, the above notice must be provided before the employee's first usual working day that they are taking as PBL or – when that is not reasonably practicable – as soon as is reasonably practicable.

If PBL starts after 56 days from the date the child dies, the above notice needs to be provided to the employer at least one week before the leave is due to start.

An employee's notice of intention to receive SPBP must be given to the employer before the end of the 28-day period which begins on the first day of the period with respect of which the SPBP payment is to be made or – when that is not reasonably practicable – as soon as is reasonably practicable.

Employee protections

During any period of PBL, an employee's terms and conditions will remain unchanged (apart from remuneration, as the employee will receive SPBP or no pay depending on their eligibility).

There are quite complex provisions in the legislation dealing with the right to return to work after PBL. In most cases, such as following an isolated period of PBL, the employee will be entitled to come back to the same job that they had before the leave. However, in certain situations where PBL is combined with another period of statutory parental leave (eg, maternity leave), the employee has the right to return to their role or, if it is not reasonably practicable for the employer to allow that, to another job that is both suitable and appropriate for the employee to do in the circumstances.

As expected, the legislation protects employees from detriment or unfair dismissal by reason of taking or seeking to take PBL or because the employer believes that they are likely to take PBL.

How should employers respond?

Around 7,500 child deaths, including 3,000 stillbirths, occur in the United Kingdom every year. The government estimates that 10,200 parents per year will be eligible for PBL, of which 9,300 will also be eligible for SPBP. This is in the context of data which suggests that only around two-thirds of businesses currently offer any form of bereavement leave.

While some organisations, particularly smaller ones, may be concerned about the imposition of fresh regulation, most employers are likely to be sympathetic to the need for employees to be properly supported through such a traumatic time.

In readiness for the legislation coming into effect in April 2020, all employers should review their policies and practices and amend them as necessary to reflect the new rights, ensuring that managers and the payroll team are aware of the business's obligations. The government's explanatory memorandum promises that draft guidance will be available ahead of 6 April 2020 and that the Advisory, Conciliation and Arbitration Service will also publish guidance for employers.

Many organisations already have compassionate leave policies in place, which may be sophisticated and offer more generous entitlements to paid leave for bereaved employees than under the new legislation. It will still be important for such employers to weave the new PBL and SPBP entitlements into their policy in a clear and seamless way.

Employers which currently have no written bereavement policy should investigate their current business practice when an employee's child dies, which could vary and be dealt with informally. Businesses in this position may decide that now is a good time to introduce a formal policy incorporating the new rights and covering the issues surrounding bereavement in the workplace more generally. There is some useful, existing Advisory, Conciliation and Arbitration Service guidance to assist with understanding the bereavement leave process.