Employment law update: Parental Bereavement Leave

From 6 April 2020, employees will have a statutory right to take paid or unpaid leave (depending on their circumstances) in the event of the death of a child or a stillbirth. What is Parental Bereavement Leave? Parental Bereavement Leave is a period of up to two weeks’ leave that may be taken at any time within 56 weeks of the death of a child (eg someone under the age of 18, including a baby which is stillborn after at least 24 weeks of pregnancy). The leave may be taken as:

• One whole week;
• Two consecutive weeks; or
• Two separate weeks at different times.

The leave can be taken in two blocks and within 56 weeks in order to enable employees to take the second week off around the anniversary of the child’s death, if they choose. The bereaved parent is entitled to a separate period of leave in relation to each child in a situation where more than one child has died or been stillborn. Who is eligible for Parental Bereavement Leave? Parental Bereavement Leave is available to employees only, from the commencement of employment. An employee is a ‘parent’ if they are any of the following:

• A natural, adoptive or surrogate parent;
• A natural parent 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;
• A person living with the child who intends to adopt them and has received “official notification” from the British authorities that they are eligible to adopt, in cases where the child has entered Great Britain from overseas for the purposes of adoption;
• An intended parent under a surrogacy arrangement (where the court was expected to make a parental order);
• 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 (eg a guardian or a foster parent but not a paid carer (other than a local authority foster carer)), unless the child’s parent or anyone with legal parental responsibility is also living in the home with the child;
• The partner of any of the above.

Under the statutory scheme the leave must be taken as whole weeks, so it is assumed that leave of less than a week would still reduce the statutory entitlement by a week. Whilst there is nothing to prevent employers from allowing the employee to use up their entitlement in days rather than whole weeks, this could cause difficulty when it comes to the entitlement to statutory pay, as a whole week of leave must be taken in order to qualify for a week’s Statutory Parental Bereavement Pay (see below). How is Parental Bereavement Leave taken? The employee must notify their employer of:

• the date of the child’s death;
• the date on which the employee wants the leave to start; and
• whether the employee intends to take one or two weeks.

There is no particular requirement for the employer to be informed in writing. For leave in the first seven weeks, the employee must notify their employer before the time they are due to start work on the day they want leave to start or as soon as reasonably practicable. In weeks eight to 56, the employee must give at least seven days’ notice of their intention to take Parental Bereavement Leave. What is Statutory Parental Bereavement Pay? Provided that an employee meets the eligibility criteria, notifies their employer and provides the relevant evidence (as set out below), they may also be entitled to Statutory Parental Bereavement Pay (‘SPBP’). Statutory Parental Bereavement Pay is paid at the same rate as other statutory payments such as paternity pay (currently £148.68), for one whole week or two whole weeks. Who is eligible for Statutory Parental Bereavement Pay? A bereaved parent (as set out above) who is employed on the date of death, with continuous employment of at least 26 weeks up to the week before the child died, will be entitled to Statutory Parental Bereavement Pay, provided that they earn a minimum amount per week (currently £116). The employee must notify their employer of the week or weeks for which Statutory Parental Bereavement Pay is being claimed. The notice does not need to be in writing (unless the employer requests it) and must be given either before the start of the Statutory Parental Bereavement Pay period, no more than 28 days after the first day of the period or as soon as reasonably practicable thereafter. The employee must also supply a written statement (at the same time as giving the above notice) confirming their name, the date of the child’s death or stillbirth and a declaration that they meet one of the criteria of a “bereaved parent”. The 28-day period enables the parties to address the administrative requirements when the employee returns to work, rather than at the time of the child’s death. Practical points Employers will need to decide whether to put in place a Parental Bereavement Leave and Parental Bereavement Pay employment policy and if so, whether the policy will go beyond the minimum statutory requirements, plus how the policy will interact with any existing compassionate leave policy. It may make sense for employers to have a standard form for use by employees claiming SPBP. Employers will also need to consider the interaction between Parental Bereavement Leave and the existing right to time off for dependents. Employees are entitled to a reasonable amount of unpaid time off to take “action which is necessary … as a consequence of the death of a dependant”. This generally only enables an employee to deal with the logistical matters which arise as a result of a death. These include arranging and attending a funeral and, where appropriate, applying for probate and meeting with probate officers. This is not a right to compassionate leave. However, an employee who needs to take a day or two off in order to make arrangements could avoid using a whole week of parental bereavement leave by taking time off for dependants instead. Grief can work in unexpected ways and it is not easy to predict the time off that may be required. Employers need to give due consideration to such issues in the context of the business and best serve the needs of either the employee or the employer in some cases. Contact Norwich Employment Law Solicitor Carla Gowing for advice at carlagowing@hatchbrenner.co.uk or call 01603 660 811. There is support available for people dealing with bereavement. Hatch Brenner is proud to support Norwich and Central Norfolk Cruse Bereavement Care. Visit their website to find out more about their support services in the community.