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 6th 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!
Although there are already laws in existence which can and have been used by employees in the event of the death of children, namely:
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.
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:-
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 56th 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.
The employee must give the employer notification of:
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.
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:
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.
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.
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.
To be eligible to receive SPBP, the individual must:
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:
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.
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