Dealing with employee bereavement: checklist

Elizabeth Stevens of Steeles (Law) LLP concludes a series of articles on dealing with employee bereavement with a checklist to help employers ensure that they treat bereaved employees in an appropriate and legally compliant way. Different people respond to bereavement in different ways and employers should try to be flexible in their approach when considering time off requests under the statutory provisions or a compassionate leave policy.  Employers that offer counselling (whether or not as part of an employee assistance programme) and that support bereaved employees on their return to work may find that those employees cope better with the demands of their job, following bereavement. 

1.  Deal with the bereaved employee sensitively. 

A bereaved employee is likely to be very upset and should be treated sympathetically. Employers should be alert to the fact that the bereaved employee's manager may not be the most appropriate person to deal directly with him or her. The employee may feel uncomfortable speaking to the manager in these circumstances and it might be better for contact to be made by another party, for example a member of the HR team, depending on the individuals involved. If the employee's line manager is more concerned with the problem of covering the bereaved employee's absence it is advisable for someone else to deal directly with the employee.

2. Be flexible.

Bereavement affects different individuals in different ways. The impact of bereavement on an individual depends on a number of factors including the relationship of the employee to the deceased and the circumstances of the death. Whether or not the employer has a formal compassionate leave policy, it should deal with each case individually and try to be as flexible as possible when considering a request for time off. Should the matter come before an employment tribunal at a later stage, the tribunal is likely to start from a position of sympathy with the bereaved employee and will expect the employer to have done what it could to assist the employee through a difficult period.

3. Confirm entitlement under the compassionate leave policy.

The employer should inform the bereaved employee of its policy on compassionate leave. It may be easier for the employer to do this following an initial conversation with the employee about taking time off. The employer can confirm in writing that time off has been agreed.

If there is an express policy on compassionate leave the employer should give details to the employee of the leave entitlement, and whether or not it is paid, and, if it is, for how long. The employee should also be reminded of arrangements for keeping the employer informed about the absence.

If the employer has no express policy, it should consider how bereavement has been dealt with in the past and whether or not there is an informal policy on compassionate leave that has arisen through custom and practice. The fallback position on time off rights is the statutory right under s.57A of the Employment Rights Act 1996 to unpaid time off in relation to dependants, which allows employees to take only a "reasonable" amount of time off work to deal with certain events relating to dependants (as defined in the legislation), including the death of a dependant. What amounts to a "reasonable" amount of time off is not defined and depends on the circumstances of each case. However, the right is limited to time off to take action that is necessary in consequence of the death of a dependant. This does not extend to compassionate leave and is limited to practical matters such as arranging and attending funerals (see Dealing with employee bereavement: time off in this series for more details).

In the absence of a formal policy the employer must decide how much time off it is prepared to grant the employee, and whether or not this will be paid, and communicate this information to him or her.

4. Inform the employee's manager and, where appropriate, colleagues, about the bereavement.

The bereaved employee's line manager should be informed of the reason for the employee's absence and, if known, its likely duration. The employer should also ask the bereaved employee how he or she would like the reason for the absence to be communicated to colleagues. He or she might prefer that the news is initially kept confidential.

5. Send formal condolences to the employee and his or her family.

Depending on the relationship of the bereaved employee to the deceased, the employer or some of the employee's colleagues may wish to express their formal condolences. It might be appropriate to send flowers on behalf of the employer or a group of the employee's colleagues. Alternatively, the employer could make a donation to the family's chosen cause.

6. Consider requests for an extension of leave.

The bereaved employee might request additional time off to that already taken and the employer should consider whether or not this request can be granted. It should refer to the compassionate leave policy if there is one. Ideally the policy should permit some flexibility in allowing additional paid or unpaid leave, depending on the circumstances of the bereavement.

Arrangements for additional agreed leave should be confirmed in writing, and the date on which the employee is due to return to work specified. The employer should make clear whether or not the leave will be paid, and, if it is, for how long. If the employee is required to take further leave as part of his or her holiday entitlement the employer should also make this clear. Alternatively, the employee's absence may be attributable to sickness absence, provided that he or she complies with the rules on sickness absence notification and certification.

7. Meet with the employee on his or her return to work.

The employer should hold an informal meeting with the employee on his or her return to work to acknowledge the employee's loss and to ascertain whether or not he or she requires additional support. If counselling is available, whether or not as part of an employee assistance programme, the employer should refer the employee accordingly. Alternatively, the employee could be referred to an external organisation offering bereavement support (for example Cruse Bereavement Care (details on its website)).

8. Be aware that the employee's performance may be affected.

The employee's ability to carry out normal duties may be reduced if he or she is having difficulty coping with bereavement. Relationships with colleagues and dealings with clients may also be affected. If necessary the employer should consider temporarily relieving the employee of some duties, particularly duties that are public-facing. A period of flexible working may also help the employee to cope with the demands of work.

9. Continue to monitor the situation.

If a problem with the employee's performance arises, the employer should address this informally with the employee at an early stage and monitor it to see if it improves. The employer should investigate the situation at a further meeting with the employee to establish whether or not anything else can be done to support him or her.

If problems persist, the employer may be left with no option but to follow the formal conduct or capability procedure. However, the employer must exercise caution, particularly if the individual is suffering from stress and/or depression as a result of the bereavement. It may be necessary for it to try to obtain a medical report about the employee to establish whether or not this is the case. If the employee is suffering from stress and/or depression this may amount to a disability under the Disability Discrimination Act 1995 and the employer must make reasonable adjustments to help the employee carry out his or her duties.

10. Implement a compassionate leave policy, if there is not already one in place.

If there is no existing formal compassionate leave policy, it would be advisable for the employer to introduce one to clarify entitlements in the event of bereavement and to ensure that the situation is dealt with fairly and consistently (while maintaining the need for flexibility in some circumstances).

As a minimum, the policy should reflect the statutory right to time off in relation to dependants, which is a right to unpaid leave and for which there is no continuous service qualification.

If it is the employer's practice and intention to exceed the statutory entitlement in respect of compassionate leave, the policy will need to cover eligibility criteria, the length of the period of leave that may be taken and whether or not, and, if it is, for how long, the leave is paid. If there are circumstances in which this period can be extended this should also be made clear. The policy could provide for a variable amount of leave depending on the relationship of the employee to the deceased. The policy should not discriminate against same-sex partners, for example by allowing extra leave only for the spouse of the deceased.

Once the policy has been finalised the employer should communicate it to all employees and issue guidelines to managers on how to implement it.

The next topic of the week article will be the first in a series on the vetting and barring scheme and will be published on 2 November.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.