Time off work for grieving parents

What is the Parental Bereavement (Leave and Pay) Act?

New legislation announced this week has been heralded as “the most generous offer on parental bereavement pay and leave in the world” by the government.

Whether or not it is possible to be ‘generous’ when talking about leave for bereaved parents, the new legislation provides a major new statutory right in employment law.

What is Jack’s Law?

The Parental Bereavement Leave and Pay Regulations will be known as Jack’s Law in memory of Jack Herd whose mother Lucy campaigned tirelessly on the issue. The law will implement a statutory right to a minimum of 2 weeks’ leave for all employed parents if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy, irrespective of how long they have worked for their employer.

When will The Parental Bereavement Act become law?

The government have announced that the act will come into force in April. It has been a while in the making, with Paul Burton writing about the Act on this site back in October 2018.

What is the current position on leave for grieving parents?

Until April, the only right to time off is the ‘reasonable’ time it takes to deal with an emergency. The right is to unpaid leave and this is often reactionary; an employer will allow an employee urgent time off for a dependent’s medical emergencies or a bereavement but often not for an extended grieving period, or for difficult times in the subsequent year.

What are the new rights for time off if a parent loses a child?

The Parental Bereavement (Leave and Pay) Act inserts a new section to the Employment Rights Act. The ERA supersedes employment contracts by imposing terms into employment contracts no matter what the employee and employer may have otherwise agreed.

How much time can a grieving parent take off work?

Parents will be eligible from the first day of their employment to take either a two-week block or two separate one-week blocks in the 56 weeks after their child’s death. This allows it to be added to the end of maternity leave if the child dies in infancy. Unlike the current rules, this also recognises that parents may suffer beyond the initial grief at times such as birthdays, Christmas or the anniversary of the death.

The right will apply to employed parents who lose a child under the age of 18, or those who suffer a stillbirth after the 24^th week of pregnancy.

In line with other statutory payments, parents with 26 weeks of continuous service with an employer will be entitled to Statutory Parental Bereavement Pay if they meet other eligibility requirements.

Who Does ‘Jack’s Law’ Apply To?

Parents and ‘primary carers’ will be entitled to these rights. That includes adoptive and foster parents, guardians and close relatives or family friends who have, in effect, assumed responsibility for a child in the absence of their parents.

Unpaid leave will be a ‘day one’ right meaning that those entitled do not require a requisite period of employment before becoming entitled. The Parental Bereavement Pay right will be triggered after 26 weeks of continuous service.

Important Things for Employers to Know:

• The rate of pay will mirror statutory maternity pay at a flat weekly rate
• Rates of pay will be recoverable by employers at either 92% or 103% as part of the Employer Payment Summary
• The regulations make no reference yet to providing evidence and employers are expected to take a light-handed approach
• Employers can ask for 28 days’ notice but this is not a requirement and will be impossible in many cases

Employers Should Also Keep in Mind:

• The death of a child is likely to be special category confidential information for the purposes of data protection
• Bereaved employees may wish to follow or observe specifically cultural or religious bereavement traditions or funeral rites which would be protected by the Equality Act
• The death of a child is particularly traumatic and employees may suffer from depression, PTSD or other conditions that could amount to a disability
• Two weeks is never going to be enough to recover fully from the death of a child or a stillbirth. Employers are free to offer more than the statutory minimum or to use their discretion about a bereaved parent returning to work.

Thoughts on changes to bereaved parental leave 

It has taken years of campaigning, particularly by the family of Jack Herd who died aged 23 months in 2010, for this new right to be brought into law.

Employers are overwhelmingly sympathetic at times of bereavement and grief but the new rules impose a legal minimum for the first time. The Business Secretary, Andrea Leadsom, has suggested that this may only be the first step in future legislation of this kind so employers should be aware that further rights may follow in the future.

Until then, employers should look at their practices and policies surrounding bereavement leave and ensure that managers are updated on the changes. Employees should feel able to talk about their situation and exercise this new right without the risk of feeling stigmatised. Ensuring that the process is open and as sympathetic as possible will help all involved.

Specialist Employment Solicitors in Bournemouth, Christchurch and Ringwood

Chris Dobbs is part of Frettens' specialist Employment & HR Law Team, along with Paul Burton. One of the most experienced specialist teams in the region, they advise both employers and employees on work-related legal matters. They are recommended in the Legal 500, a highly-regarded independent guide.

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