Parental Bereavement Leave

The Government have published new draft Parental Leave Regulations, to deal with the right itself, and the applicable pay when a parent loses a child. These are not in their final form and are subject to change, but the draft Regulations give us some useful guidance as to what the law will be.

Headline Points In The Draft Regulations Are:

• It applies to all employers and businesses, regardless of their size.
• The right is for two weeks parental bereavement leave and is available for any employee – there are no minimum service requirements, much like maternity leave.
• The leave needs to be taken in complete weeks and can be taken as one period of two weeks, or two separate periods of one week each.
• The leave needs to be taken within 56 weeks of the child’s death. The purpose of the leave is to allow parents to take time away from work when they need it most and most notably this covers the 1st anniversary of the child’s death.
• There is a wide definition of “parents” who are able to take this leave – it includes natural and adoptive parents, step-parents and others who have a “parent-like” caring role for the child.
• Parents can take this leave for any still birth after 24 weeks, or for any child under the age of 18 years old who passes away.
• The notice requirements differ depending on when the employee wants to take the leave:
  • If the leave is taken within 56 days of the death of the child, or still birth, no advanced notice is required. The employee simply needs to inform their employer that they are taking parental bereavement leave.
  • If the leave is taken after the initial 56-day period, then the employee must give their employer one week’s notice that they intend to take parental bereavement leave (this is one week before the first day of the leave intended to be taken). It is at the discretion of the employer to allow employees to take the leave even if they don’t serve the required notice.
• Employees are protected from being subjected to a detriment because they take the leave, sought to take the leave or the employer believes that they are going to take the leave.
• Similarly, employees are protected from dismissal due to taking the leave, seeking to take the leave or their employer believing that they will seek to take the leave.
• During any period of the leave, the employee is entitled to all rights and benefits of their employment, apart from pay (see more on statutory parental bereavement pay below).
• Employees who return from the Leave, taken in isolation, or alongside parental leave of no more than 4 weeks, or other statutory family leave totaling no more than 26 weeks, are entitled to return to their same job.
• Employees who return after the above, are entitled to return to their job, unless it is not reasonably practicable, in which case they should return to a job which is suitable and appropriate for them (this mirrors the provisions for maternity, adoption and shared parental leave).

Statutory Parental Bereavement Pay

Statutory Parental bereavement pay (the “Pay”) is available for employees who meet certain eligibility requirements:.

• The requirements are a mirror of those for statutory maternity pay, namely that the employee must have 26 weeks service before the date of the Leave.;
• The employee must give 28 days’ notice of their intention to take the leave and claim the Pay. If this is not reasonably practicable, then they must give as much notice as is reasonably practicable – this is likely to be used for periods of leave taken in the first 56 days after the child’s death.;
• The employee must provide information to their employer (in writing), as follows:
  • The name of the person claiming the Pay
  • The date of the Child’s death
  • A declaration that they are entitled to take the Leave and receive the Pay

A notice of the Leave and/or the Pay may be withdrawn by the employee if they no longer wish to take the Leave and receive the Pay, in accordance with the following:

• Where the leave is in the first 56 days after the child’s death, they must inform the employee no later than the first day of the Leave that they no longer wish to take it.
• Where the leave is after the first 56 days of the child’s death, the withdrawal must be made no later than one week before the first day of the Leave.

There are special provisions for when an employee has between 25- and 26-weeks continuous employment.

There are also special provisions in relation to “irregular workers”, where there have been temporary breaks in work. This means that certain weeks when the employee is absent from work can still count towards their 26 weeks service, for the purposes of the Pay.

The weekly rate of the Pay is the lower of:

• 90% of the employee’s normal weekly earnings; or
• The statutory rate, which is currently £151.20.

The employer will remain liable to pay the employee the Pay where the employer has dismissed the employee solely or mainly so that the employer avoids having to pay the Pay, and the employee has at least 8 weeks service before the date of the child’s death.

This new right is available for employees (subject to the above) whose child dies or who has a still birth on or after 06 April 2020.

Conclusion

Once the Regulations are finalised, we are likely to get additional guidance from the Government and ACAS on best practice. However, the Regulations are clear, which means that we now have clarity on what this new right will look like when it comes into force on 06 April 2020, so it is advisable to start looking at this now.

If you need any assistance with drafting a Policy for this new right, or any help or advice with any of the changes coming in from 06 April 2020, please do not hesitate to contact a member of the Employment team.