Bridge HR articles

In April of this year a final piece of legislation came into force to provide employees with a defined right of Parental Bereavement Leave and also a right of pay during it.

From 6^th of April 2020, people in England and Wales have a statutory right to time off following what is of course a tragedy and perhaps should have been accounted for in workplace law some time ago…that is the death of a child, and, in most instances, for this to be paid.

Aside from the more general right to “reasonable time off” following the death of a close family member, surprisingly to many, this area has been generally left up to individual employers until now.

It is, of course, likely that employees will require support for the death of any close family member but the death of a child is quite rightly now recognised as having unique stressor hence why there have been calls to have a defined, statutory, guaranteed period of leave for people in this situation since 2013!

Why?

Although there are already laws in existence which can and have been used by employees in the event of the death of children, namely:

• The right to time off to care for dependents already has a structure to cover, sudden, unexpected absences related to dependents. This includes entitlement to a reasonable amount of unpaid time off to take “action which is necessary… as a consequence of the death of a dependant”.
• In cases of stillbirth after 24 weeks of pregnancy, or the death of a child shortly after birth (neonatal death), employees retain their full entitlement to maternity leave and paternity leave (and pay), in addition to the right to parental bereavement leave and pay.
• Where an adoption agency has placed a child with an employee for adoption, the employee may be entitled to statutory adoption leave. If the child dies after placement, the adoption leave period will end eight weeks from the end of the week in which the child died, unless it would have ended earlier in any event.
• Shared parental leave may still be available in limited cases where the child has died following birth.

There has not been, until now, a simple right to time off because of the death of a child, and this new law thankfully brings this in to support employees in tragic circumstances where they need support….so that anyone who suffers the tragedy can be guaranteed some time away from work to assist them in dealing with it.

Who can use it?

The right is available only to employees.

It does, however, cover all employees, there is no minimum service requirement.

It is a “day one” right.

It is available to employees who suffer the death of a child under 18 and includes stillbirths after 24 weeks.

To be covered you must be:-

• A parent. There is no definition of parent but it would include an adoptive parent and a person who has become a parent under the various statutory provisions on surrogacy and fertility treatment. Being a parent is not synonymous with having parental responsibility;
• A natural parent of a child, where the child has been adopted but there is a court order for the child to have contact with the natural parent.
• A person with whom the child has been placed for adoption by a British adoption agency, or under a fostering for adoption scheme, as long as that placement has not been terminated.
• Where a child has entered Great Britain from overseas for the purposes of adoption, a person living with that child who intends to adopt them and has received “official notification” from the British authorities that they are eligible to adopt.
• An intended parent under a surrogacy arrangement where it was expected that the court would make a parental order under section 54 or 54A of the Human Fertilisation and Embryology Act 2008.
• A “parent in fact“, defined as someone in whose home the child is living and who has had day to day responsibility for the child’s care for at least the four weeks prior to death. However, this does not include a paid carer (other than a local authority foster carer), nor does it apply if the child’s parent or anyone with legal parental responsibility is also living in the home. This would appear to exclude an older sibling of the child who looks after the child in the family home, unless neither parent was living there.
• The partner of any of the above. “Partner” means a person living with another person and the child in an enduring family relationship, and who is not the parent’s parent (including adoptive parents), grandparent, sibling (including a half-sibling), aunt or uncle (including half-aunts and uncles).

How long does it last?

The leave is a maximum of two weeks.

It can be taken in a single block, or can be split into two separate weeks and it can be from any day of the week.

It can be taken any time up to the end of the 56^th week after death or stillbirth. This means that a parent may choose to take their second week at the anniversary of the death.

There is nothing to prevent employers from allowing the employee more flexibility, by letting them use up their entitlement in days rather than whole weeks. However, this will have repercussions when it comes to the entitlement to statutory pay, since the rules require a whole week of leave in order to qualify for this. Where an employer wishes to give flexibility, they must take care to ensure their scheme is not less favourable than the statutory one and that any pay, in particular, is either higher or equivalent.

What do employees have to do?

The employee must give the employer notification of:

• the date of the child’s death.
• the date on which the employee chooses leave to start.
• whether the employee intends that period to be one or two weeks.

There is no formality for how the employer should be informed: for example, there is no requirement for the notice to be given in writing. In theory a telephone call, voicemail or text message from the employee to their manager ought to suffice.

In the first 8 weeks, the employee simply needs to give notice of intention to take the leave before they are due to start work. After this, at least a week’s notice is required. Employees can cancel or re-arrange leave with the same notice periods.

What is the practical effect?

During leave, the employee’s terms and conditions are identical to those during paternity, maternity, adoption or shared parental leave. In other words, they have the benefit of all terms and conditions except those governing “remuneration”

After leave the employee’s right to return to work is similar to the right that exists after paternity leave, maternity leave, adoption leave or shared parental leave.

However, this is modified where the leave is taken consecutively with a period of:

• Parental leave of more than four weeks; or
• Other statutory family-related leave (maternity, adoption or shared parental leave) taken in relation to the same child where the total amount of statutory leave taken in relation to that child is more than 26 weeks.

In such cases the employee’s right is to return to the same job or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is “both suitable and appropriate for the employee to do in the circumstances”.

In either case, the employee’s seniority, pension and similar rights must be the same they would have been if the employee had not been absent, and their terms and conditions must not be less favourable than those which would have applied if the employee had not been absent

As with all employment rights, employees are protected from dismissal or other detriment as a result of exercising the right.

What about pay?

The right does come with a statutory pay scheme, although not everyone who qualifies for leave will automatically qualify for pay. The rules are slightly different and it’s possible to qualify for leave and not pay, and, slightly confusingly, for pay but not leave.

For a start, there is a minimum earning threshold and a qualifying employment period. Employees must have six month’s continuous employment to qualify for pay. They must also have normal weekly earnings of at least the lower earnings limit. Therefore, employees with less employment or on lower pay will be able to take the leave, but may not qualify for the statutory pay.

How much?

It is paid at the same rate as statutory paternity pay or shared parental pay.

It is important to note that it is not payable during a week in which the employee does any work for the employer. Therefore, if your employee is on this leave, you must not ask them to do any work for you if they are expecting to qualify for this pay.

Who can receive paid leave?

To be eligible to receive SPBP, the individual must:

• Be a “bereaved parent”, meaning they satisfy the conditions with regard to their relationship to the child or the child’s parent as set out above;
• Be in employed earner’s employment with the same employer for a continuous period of at least 26 weeks ending with the “relevant week” (which is the week before the child died);
• Remain in that employment at least until the day the child died;
• Have received normal weekly earnings for the period of eight weeks ending with the relevant week that are not less than the lower earnings limit in force at the end of the relevant week.

Liability for SPBP falls on any employer in respect of whom the individual has been an employee and meets the relevant criteria. It seems likely therefore that, where an employee has two jobs, both employers may liable to pay them SPBP. An “employer” for SPBP purposes is anyone who is liable to pay secondary class 1 national insurance contributions (NICs) in respect of an individual.

The definition of employee in fact includes apprentices and anyone treated as an “employed earner” for NIC purposes – such as office cleaners and agency workers. It is therefore slightly wider than the definition in the Employment Rights Act. This is how it’s possible to qualify for pay (with this wider definition) but not come within the definition of employee to qualify for the leave itself.  To do so the person seeking pay needs to serve the relevant notices and refrain from work during the week or two weeks in which SPBP is being claimed.

Normal weekly earnings are calculated in the same way as for statutory maternity pay, based on the eight weeks ending with the week before the child died

It is NOT payable during any week in which:

• The employee is entitled to statutory sick pay (SSP), even for just part of the week.
• The employee dies.
• The employee is detained in custody or imprisoned

Statutory payments to employees for periods of family-related leave can be recovered by the employer from HMRC at a rate of 103% for small firms and large firms at 92% and this includes Statutory Parental Bereavement Leave.

How else to deal with parental bereavement

The law has provided a basic right, but it is important to remember that there are other protections which may apply for people in this situation. They may be simply too unwell to work and need some time off on sick leave. They will be entitled to whatever the contract and/or statutory rights allow, but employers may wish to use their discretion to allow additional contractual pay in these circumstances and are free to do so. A policy which sets out the terms on which this can be done is very useful to ensure that there is fairness and consistency across the board, to avoid unintentionally discriminating.

A bereaved parent may develop more serious mental health conditions as a result, and thus become protected by Disability Discrimination Legislation. This would involve employers considering reasonable adjustments to allow them to remain in work, and is a complicated area of law requiring specialist advice.

Larger employers may look to provide positive support from counselling or other similar services, which would potentially assist their employees to recover and enable to them to return to work. Some may include health insurance and/or permanent health insurance benefits which may be of use.

Some employees may never be able to return to their previous jobs, and a managed exit from work would need to be undertaken – again a complex area for which specialist advice is strongly advised.

And employers must remember that employees are entitled to confidentiality and privacy at all times when dealing with such sensitive personal information and ensure they have systems in place to deal with this.

If you have any difficulties or concerns please do get in touch, it may be that policies need to be reviewed or you consider some training for managers on handling bereavement effectively.

Email: enquiries@bridgeehr.co.uk

Tel:       01904 360 295