Parental bereavement leave: Eight issues for employers
Author: Stephen Simpson
The Government is pressing ahead with proposals to introduce statutory parental bereavement leave in April 2020. The Parental Bereavement (Leave and Pay) Act 2018 has received Royal Assent and the Government has published its response to its public consultation on the new right. What do employers need to know now about how parental bereavement leave will work?
NOTE: This guidance was based on the information available in January 2019, including the Parental Bereavement (Leave and Pay) Act 2018 and the Government's response to its public consultation. See Parental bereavement leave: Eight key points to help HR prepare for up-to-date guidance, which takes account of the draft Parental Bereavement Leave Regulations 2020 and Statutory Parental Bereavement Pay (General) Regulations 2020, which were published in January 2020.
Parental bereavement leave: key documents
"Parental bereavement leave" is a new entitlement for bereaved parents of a child to be absent from work with pay for up to two weeks.
The Parental Bereavement (Leave and Pay) Act 2018 completed its passage through Parliament on 13 September 2018, which is the date on which it received Royal Assent.
On 2 November 2018, the Government published the response to its public consultation (which ran from 28 March to 8 June 2018).
The fine details are still to be set out in Regulations. However, both the final version of the Act and the Government's consultation response provide a useful starting point for employers that want to find out more about the new entitlement to parental bereavement leave.
1. Who will be entitled to leave?
Statutory parental bereavement leave will be available to employees who are "bereaved parents" where they were the primary carers for a deceased child under the age of 18.
This will be a "day one" right, meaning that staff will not require a minimum period of service (although there will be a qualifying period for statutory parental bereavement pay - see below).
In most cases, this will allow birth parents whose child has died to take leave, unless they were not the child's primary carers (so the birth parents of children who have been adopted would not be entitled to leave). Entitlement will be focused more on who has responsibility as the "primary carers" for the child and less on the legal status between the adult and the child.
As well as birth parents, the new entitlement will also be available to adults with parental responsibility for children in "non-traditional family structures". This means that entitlement will cover:
- adoptive parents;
- individuals who are fostering to adopt;
- legal guardians; and
- most foster parents (although short-term arrangements, such as emergency foster care, may not be covered).
Since the inception of the legislation, one very important change to entitlement has been made. The final version of the Parental Bereavement (Leave and Pay) Act 2018 specifically covers parents who suffer a stillbirth 24 weeks or more into pregnancy.
2. What patterns of leave will be allowed?
Parental bereavement leave will operate in units of one week. Bereaved parents will not be entitled to take the leave as individual days.
The weekly blocks will mirror how other family leave works: for example paternity leave and shared parental leave must also be taken in weekly units.
Bereaved parents will be able to take the leave as:
- a single block of two weeks; or
- two separate blocks of one week at different times (for example the first week immediately after the child's death and the second week at the time of the funeral).
There may be circumstances in which the employee wishes to take a single week's leave.
3. How long will bereaved parents have to take leave?
The Parental Bereavement (Leave and Pay) Act 2018 leaves open the length of time that bereaved parents would have to take parental bereavement leave, stating that it would be no less than 56 days (eight weeks).
However, the Government has now stated that the time for taking leave will be 56 weeks from the date of the death of the child.
This should allow bereaved parents flexibility as to when they take the leave. The Government gives the example of an employee wishing to take leave around the first anniversary of the child's death.
The 56-week time period also means that employees who are already entitled to family leave, such as maternity leave, will not lose out. Employees already taking maternity leave will be able to add their parental bereavement leave on to the end of their maternity leave.
4. Will there be a notice period for bereaved parents to take leave?
Notice requirements for employees to take parental bereavement leave will be split into two timeframes:
- Leave taken soon after the death. Bereaved parents will be able to take the leave straightaway, without having to give a period of notice. They will still have to let their employer know the reason for their absence from work and that they wish to take parental bereavement leave. However, informal notification, such as a phone call or email, will be sufficient.
- Leave taken after the initial period. A notice requirement will apply, although the exact point after the child's death at which this requirement will commence has not been confirmed (it will be set at "a few weeks", according to the Government's consultation response). After the initial period, bereaved parents will normally have to give at least one week's notice of leave.
5. Will bereaved parents require evidence to take leave?
The Government will bring forward Regulations to give effect to the decisions taken as a result of the consultation. We will continue to work with relevant stakeholders as we finalise the secondary legislation and prepare for implementation. The relevant guidance will be updated to reflect the changes to legislation made by this Act, to ensure that employees and employers are aware of this new right.
"Next steps", Parental bereavement leave and pay: government response
Employers will be relieved that the Government appears to be taking a relatively light touch to its evidence requirements for parental bereavement leave. The most that employees will have to do is to provide a written declaration that they are entitled to parental bereavement leave.
No written declaration of entitlement will be required to take leave during the initial period soon after the child's death. However, the Government is considering whether or not a written declaration will have to be produced on request for periods of leave after the initial period.
At no point will employers be required to ask for anything more intrusive than a written declaration. For example, there will be no need for the employee to provide a copy of the child's death certificate or a letter from the child's doctor.
6. Who will be entitled to statutory parental bereavement pay?
To be eligible for statutory parental bereavement pay, bereaved parents will be required to have:
- at least 26 weeks' continuous employment with their employer ending with the week before the week in which their child dies, and still be employed by that employer on the day on which the child dies; and
- normal weekly earnings in the eight weeks up to the week before the child's death that are not less than the lower earnings limit for national insurance contribution purposes.
7. Will evidence be required to receive statutory parental bereavement pay?
Employees will be required to provide a written declaration confirming that they meet the eligibility requirements to receive statutory parental bereavement pay. The declaration will have to be provided within a reasonable timeframe.
This approach mirrors the requirements for statutory paternity pay. The Government makes it clear that the need for employees to provide a written declaration to receive statutory parental bereavement pay will not interfere with the employee's right to parental bereavement leave.
As the consultation response says, a bereaved parent should never be prevented from taking time off work in the initial period after the death of his or her child by such a requirement.
8. What bereavement leave do employers currently offer?
XpertHR's benchmarking service has the full data from all the questions from this survey, including data breakdowns by factors such as broad industry sector and organisation size. Benchmarking subscribers can additionally access exclusive written details of:
- arrangements for granting bereavement leave at 103 organisations;
- approaches to dealing with bereavement leave requests on a case-by-case basis at 43 organisations; and
- how 62 organisations monitor bereavement leave decisions to ensure fairness and consistency.
The Government acknowledges in its consultation response that statutory parental bereavement leave and pay is the minimum employers will have to provide and encourages employers to enhance their offering.
Ways in which employers could enhance their offering include:
- providing employees with more than two weeks' bereavement leave;
- paying bereaved employees their full pay for some or all of their absence; and
- allowing employees the option to take additional discontinuous days' paid bereavement leave.
XpertHR's 2018 bereavement leave survey provides an indication of how employers are approaching bereavement leave in advance of the introduction of the new rules in April 2020.
Almost all employers already offer their staff paid time off during a time of bereavement, according to the survey. For the "closest" relationship categories, which includes children, the median paid bereavement leave entitlement is five days.
However, few employers offer more than 10 days' paid bereavement leave, meaning that many will need to increase their entitlements in April 2020 to comply with the new laws.