Many employers already adopt a sympathetic approach when an employee is faced with the bereavement of a close family member – particularly a child – but, unfortunately, this is not always the case. An employee's only current statutory right is to unpaid dependant leave for a "reasonable" amount of time to deal with the death. From 6 April 2020, parents who suffer the loss of a child will be entitled to two weeks' statutory leave that may be paid. This has commonly been referred to as "Jack's law", after a campaign led by Jack Herd's mother who highlighted in a government statement the issues grieving parents must cope with alongside their own loss:
"In the immediate aftermath of a child dying, parents have to cope with their own loss, the grief of their wider family, including other children, as well as a vast amount of administrative paperwork and other arrangements. A sudden or accidental death may require a post-mortem or inquest; there is a funeral to arrange; and there are many other organisations to contact, from schools to benefit officers"
What is Jack's law?
From 6 April 2020, under Jack's law, working parents (which is widely defined) who lose a child under age 18 or suffer a stillbirth from 24 weeks of pregnancy, from day one of employment will be entitled to take:
- Two weeks' statutory parental bereavement leave (SPBL) within 56 weeks of the death of the child;
- Statutory parental bereavement pay (SPBP) where the employee has 26 weeks' continuous employment. SPBP operates in line with the approach for other parental entitlements, such as paternity leave and pay, and from 6 April 2020 will be paid at £151.20 per week (or 90% of average weekly earnings where this is lower) and provided the employee has earned at least the lower earnings limit for the past eight weeks. If the employee does not meet these requirements, SPBL will be unpaid.
Specific notification requirements apply. These are fairly relaxed for SPBL but for SPBP, an employee must provide a written declaration of entitlement.
Taking the leave in blocks of a week
In many respects the right to take SPBL mirrors the other statutory leave requirements in terms of the protection afforded to employees regarding their terms and conditions of employment; the right to return to the same role at the end of SPBL, (or in some cases where it is combined with another period of statutory leave to another job that is suitable and appropriate); and the right not to be subjected to a dismissal or detriment in relation to SPBL. However, employers should note that SPBL can only be taken as a block of one week, two consecutive weeks or two separate weeks at different times. SPBL cannot be taken as individual days.
The block or blocks of SPBL must be taken within 56 weeks of the death of the child.
Drafting a bereavement/compassionate leave policy
An appropriately worded bereavement policy will be a helpful reference tool providing some certainty for an employee at a difficult time. Employers should now update their existing policies and procedures to ensure employees are aware of this new statutory entitlement, particularly the right to split the two one-week paid blocks of leave over the course of the year (existing policies may well focus on the period immediately following the bereavement). The Advisory, Conciliation and Arbitration Service has also issued guidance on time off for bereavement that it may be helpful to reflect in any policy.
The new rules have faced some negativity directed at the notification requirements that the employee must comply with to receive SPBP, at what is inevitably a distressing time for a working parent. Bereavement leave is likely to be a situation where HR will take the lead on running the employee through any specific practical requirements. Employers should therefore consider whether a more sympathetic approach should be adopted in their policies than may be the case for some of the other statutory leave rights, such as maternity leave, shared parental leave etc. where the thorny detail is often set out in the procedure itself.
Employers may wish to reflect the new statutory right to SPBL and SPBP by:
- alerting employees to their statutory entitlement to take two weeks' parental bereavement leave in the first year of their bereavement – it may be useful to clarify who is a parent for these purposes;
- confirming how this sits with any other compassionate or bereavement leave policies, any emergency leave policy, such as the right to dependant leave; and the company's sick leave policy;
- confirming any entitlement to pay (statutory or otherwise) and clarifying that other terms and conditions are unaffected;
- referring the employee to HR who will guide them through the process; and
- advising the employee of the other support mechanisms that the employer can offer, such as access to an employee assistance line, or accommodating more flexible working arrangements over a temporary period etc.
In practice, where an employee fails to comply with the notification requirements required under the new rules, employers will need to consider whether or not they would be prepared to make a payment in any event, even though they may not be able to recoup that money from the government. Employers can usually reclaim at least 92% of employees’ statutory maternity, paternity, adoption and shared parental pay and this is expected to be the case for SPBP.
Employers may also want to use the opportunity to review any compassionate/bereavement leave generally. Does it reflect what happens in practice? Does it reflect the requirements of different racial or religious groups who may respect specific practices when in mourning? Does it confirm that the employer will respect the employee's privacy and personal data relating to the bereavement. An employer should not disclose details to other members of staff, unless the employee agrees to the information to be shared.
Kevin Hollinrake MP, who sponsored the original Private Member's Bill, stated: "Losing a child is every parent's worst fear, but no one could ever fully understand the utter devastation of such a loss. Whilst most employers are compassionate and generous in these situations, some are not, so I was delighted to be able to help make leave for bereaved parents a legal right". This new right is hopefully a step in the right direction to highlighting the support working parents will need and avoid employees feeling they have no option but to continue to attend work or potentially use their holiday entitlement.
As well as focusing on the compassionate/bereavement policy and an employee's leave and pay entitlements, employers should also remain alert to any difficulties the employee faces. Mental health conditions like anxiety and depression are common after a bereavement and may affect the employee's performance or behaviours. Where the mental health condition is prolonged and the employee is disabled for the purposes of the Equality Act, the employer will need to consider what reasonable adjustments etc. may be required.
The new law arrives ahead of the government's new Employment Bill, announced in the Queen's Speech in December, which is set to introduce further measures protecting workers, including a new right to statutory carer's leave and neonatal pay. We may see more announcements in this respect in the Budget on 11 March.
Please do contact your usual Osborne Clarke contact for more detail and if you would like to receive a copy of our parental bereavement leave guide.