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Jan 2020

The Parental Bereavement (Leave and Pay) Act 2018

Under the new legislation, which is due to come into force in April 2020, bereaved parents will be entitled to at least two weeks’ leave following the death of a child under the age of 18 or if they suffer a stillbirth after 24 weeks of pregnancy. The legislation is due to be supplemented by regulations which detail the notification and procedural requirements, but these have yet to be published.

Interestingly, the legislation has been drafted widely to benefit all employee responsible for caring for a child before their death. As such, it is anticipated that this entitlement will apply to parents, foster parents, adopted parents and close friends or family responsible for the child’s care.

Right to parental bereavement leave

The right to two weeks’ leave will be a day one right and there is no qualifying eligibility criteria to benefit from this. However, under the legislation, the leave must be taken within 56 days of the death and the child.

The regulations will also provide that an employee who is absent on parental bereavement leave is:- 

  • entitled to the benefit of the terms and conditions of employment which would have applied but for the absence;
  • bound by obligations arising under those terms and conditions; and
  • entitled to return from leave to a job prescribed by the regulations (this will include provisions about redundancy, offers of alternative roles or dismissals that are unfair if they are in contravention of the regulations).

Similarly, to other family leave provisions, employees who take parental bereavement leave will be entitled to the same protection from dismissal or suffering a detriment.

Right to parental bereavement pay

On top of the right to leave, employees who meet the eligibility criteria will also be entitled to statutory parental bereavement pay. Although the rates have yet to be confirmed, it is anticipated that the pay will reflect statutory paternity pay.

The eligibility criteria for parental bereavement pay is as follows:-

(a) that the person is a bereaved parent,

(b) that the person has been in employed earner’s employment with an employer for a continuous period of at least 26 weeks prior to the week of the death,

(c) that at the end of the week before the death, the person was entitled to be in that employment,

(d) that the person’s normal weekly earnings for the period of 8 weeks ending with the week before the death are not less than the lower earnings limit (currently £116), and

(e) that the person has been in employed earner’s employment with the employer for a continuous period beginning with the week before the child died and the week the child died. 

What does this mean for employers?

Although the legislation is only due to come intro force in April 2020 and employees will be able to rely on the existing compassionate leave policies and right to time off for dependants until such time, it would be prudent for employers to review their existing policies and staff handbooks.

The entitlement to two weeks’ leave is the statutory minimum and as such, employers should recognise that more time may be needed is certain circumstances. Consequently, as well as the leave and pay entitlements, employers should also consider what, if any, amendments and support could be provided to assist with their employee’s wellbeing. This could include phased returns to work, counselling services or wellbeing services.

If you need any assistance preparing for the introduction of parental bereavement leave and pay, contact one of our employment solicitors who would be happy to assist you.

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