From 6 April 2020, parents who have tragically suffered the loss of a child will be entitled to two weeks' statutory Parental Bereavement Leave and, if they have 26 weeks' service, statutory bereavement leave pay as well.
The right to parental bereavement leave
The new right will apply to employees who have suffered the loss of a child under the age of 18 years old or suffered a stillbirth from 24 weeks of pregnancy from 6 April 2020. Parents can take up to two weeks' leave, either in one block of two weeks or in two blocks of one week, within 56 weeks of the child's death. The right to take two weeks' unpaid bereavement leave will apply to all employees from 'day one' of employment.
Who is eligible for parental bereavement leave?
The new law uses a wide definition of parent. The right applies to parents, adoptive parents, intended parents, parents-in-fact and the partner of any of these individuals as well as foster carers, employees with day to day responsibility for the child (who are not being paid for such care) and employees who expect to be granted a parental order in respect of the child.
Who is eligible to be paid for parental bereavement leave?
Employees with at least 26 weeks' continuous service, who meet the minimum earnings criteria and provide the proper notice (see below), will also be entitled to be paid Statutory Parental Bereavement Pay (SPBP) during their bereavement leave. SPBP will be paid at the same rate as statutory paternity pay, i.e. £151.20 per week (from 6 April 2020) or 90% of weekly earnings if lower. Employers can chose to top this up to an employee's usual rate of pay to bring it in line with their compassionate leave policies if they wish.
Do employees need to give notice to take parental bereavement leave?
Yes. The notice requirements for parental bereavement leave differ according to when the employee is taking the leave:
- Leave taken within 56 days of the child's death: the employee must provide notice to the employer before they are due to start work on their first day of absence or, where that is not possible, as soon as reasonably practicable.
- Leave taken between 56 days and 56 weeks following the child's death: the employee must provide a week's notice to the employer.
When giving notice of their intention to take bereavement leave, the employee must provide the date of the child's death, the date on which they would like their absence to begin and confirm whether they are intending to take one or two weeks of leave. They are not required to provide a copy of the child's death certificate.
Are further notice requirements needed for Statutory Parental Bereavement Pay?
Yes. In order to receive SPBP for the bereavement leave, the employee must also give written notice to their employer. This notice should be given within 28 days of taking the bereavement leave or, where that is not possible, as soon as reasonably practicable. When giving notice, the employee must provide their name, the date of the child's death and a declaration that they meet the eligibility criteria to receive SPBP.
Does the entitlement differ if an employee loses more than 1 child?
The employee is entitled to parental bereavement leave in respect of each child.
Does parental bereavement leave affect maternity or paternity leave?
No, taking bereavement leave will not affect entitlement to maternity or paternity leave, which should be available to employees in the event of a stillbirth from 24 weeks of pregnancy.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Employers should review their approach to Compassionate Leave to inform what policy they might introduce for parental bereavement leave and pay. Employers who offer full pay for compassionate leave may wish to introduce a Parental Bereavement Policy which goes beyond the statutory pay requirements and offer full pay for parental bereavement leave.
The notice requirements have been criticised for being overly complicated so employers should also consider what they would do if an employee does not comply with the statutory notice requirements. A decision about whether the organisation's approach will be to pay the employee anyway, in the knowledge that the statutory amount will not be recouped, should be taken and applied consistently across the organisation.
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 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.
The Regulations are currently in draft but are expected to be made into a Statutory Instrument in their current form before 6 April 2020.
DAC Beachcroft will be covering Parental Bereavement Leave and Pay in the Employment Webinar on 11 February 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.