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Bereavement Leave – What are your Rights?

Reasons to choose Wilson Browne

Jack’s Law

Previously, there was no legislation allowing parents to take bereavement leave for loss of a child, but this is soon to change as a result of Jack’s Law.

The Parental Bereavement Leave Regulations 2020 come into force on 6th April 2020 (“the Regulations”). The right to leave under the Regulations will apply to those parents who have lost a child who was under 18 years of age – this includes the stillbirth of an unborn child after 24 weeks of pregnancy. The Regulations also specify the right to Statutory Bereavement Leave Pay (“SBLP”).

The right to Parental Bereavement Leave (“PBL”)

Who is entitled to take PBL?

Only employees are entitled to take PBL and there is no minimum length of service requirements to be eligible for this right.

An employee will be entitled to take time away from work for bereavement leave and be paid for it, if they qualify as a “bereaved parent” under the Regulations.

How much PBL can be taken?

Employees are entitled to take a minimum period of 1 week’s PBL and the maximum that can be taken is 2 weeks. The leave can be taken at any time within the period of 56 weeks. The leave does not have to be consecutive.

Are there any notification requirements?

When an employee wishes to take PBL they must comply with a number of notification requirements. Those requirements relate to the:

• timing of the notice – and this is dependent on when the leave is due to start, and
• information to be provided – this includes the date of death of their child and when leave is to start.

Notification of PBL does not necessarily need to be given in writing.

An employee should also issue a notification if they wish to cancel PBL. However, cancellation must happen before PBL commences for it to be effective under the Regulations. What happens to the employee’s terms and conditions when they take PBL?

The employee’s terms and conditions continue whilst they are on PBL and they are bound by their terms and conditions of employment.

What happens on the employee’s return to work?

At the end of the PBL the employee has the right to return to the job they were employed to do before they exercised their right to the leave.

What if the employer gets it wrong?

The employee can make unfair dismissal detriment claims regardless of their length of service in a number of scenarios. Dismissals relating to an employee exercising their PBL right (including scenarios where the employer thinks the employee will take BPL) will be automatically unfair.

The right to Parental Bereavement Leave Pay (“PBLP”)

What pay is the employee entitled to when they take PBL?

Provided they satisfy the qualifying conditions the employee will be entitled to PBLP. Qualifying conditions relate to:

• to length of service, and
• earnings received in the preceding 8 weeks in the week before the day the child has died.

Rates are the same as for Shared Parental Pay or Statutory Paternity Pay.

How much notice does an employee need to give for PBLP purposes?

Notice must be given before the start of their PBLP or 28 days after the first day of the PBLP period.

Notice provisions are also triggered if PBLP is to be cancelled.

Can I ask for evidence of PBLP entitlement?

Yes! The employee is obliged to provide a written statement which specifies:

• the employee’s name,
• the date of the child’s death, and
• a declaration they qualify as a bereaved parent.

Can I refuse to pay PBLP?

There are some limited instances when PBLP is not payable. This includes when the period for PBLP coincides with an entitlement to statutory sick pay.

Steps organisation can take to ease PBL and PBLP compliance

Should the right to PBL ever arise, the employee is undoubtedly going to have far more pressing matters on their minds than what they need to do to as far as their employment is concerned. For this reason, employers are encouraged to try and make this element of their employee’s life straight forward. Thought should therefore be given to how an employer might approach such a situation ahead of it actually arising. Obvious, and relatively easy, steps that can be taken include:

  • A PBL Policy – as with other types of family friendly policies, these can either give the statutory rights only or can include enhanced rights – e.g. paying full pay during PBL.
  • Devising a pro forma which can be sent by an organisation to an employee who is excising their right to PBL – this can then be easily completed and returned by the employee for PBLP purposes.
  • FAQs on PBL and PBLP on the organisation’s intranet.
  • Inform managers about what they should do in the event a report calls in requesting PBL.

If you need Employment advice, please contact our Specialist Team.

Jennie Jahina

Posted:

Jennie Jahina

Partner

Jennie is a Partner and Head of the Employment team.  A member of the Employment Lawyers Association, Jennie has 21 years’ experience and is an accredited CEDR Mediator. She acts for private sector organisations ranging from SMEs to multi-national companies and public sector organisations.