Bereavement Leave after loss: the right to time off after the death of a loved one

There is currently no entitlement to leave for an employee who suffers the death of a loved one, apart from a limited right to time off to deal with the consequences of the death such as arranging a funeral.  However, the new Parental Bereavement (Leave and Pay) Act 2018, which received Royal Assent on 13 September 2018, means that from 2020 bereaved parents will be entitled to two weeks’ leave. 

Parental bereavement

The new law on parental bereavement is still in its infancy.  Although the Act has been passed, it will need to be implemented by separate regulations.  These regulations will set out precisely how parental bereavement leave will work and to whom it will apply.  The regulations are expected to come into force in 2020.

For now, we know that where a parent loses a child under the age of 18 or has a child stillborn after 24 weeks of pregnancy, they will be entitled to two weeks’ leave. They will also be entitled to “statutory parental bereavement pay” if they have been employed by their employer for a continuous period of 26 weeks and satisfy certain other criteria similar to eligibility for statutory paternity pay.  The amount of the pay is yet to be clarified but it is unlikely that bereaved parents will have a statutory entitlement to time off with full pay. The leave must be taken within 56 days of the child’s death.

 It should be noted for completeness that there is currently legislation in place for female employees who suffer a stillbirth after 24 weeks.  They are entitled to up to 52 weeks statutory maternity leave and/or pay and similarly, the death of a child born alive does not affect the entitlement to maternity leave. 

Other forms of bereavement

Where does this leave those who suffer a loss other than that of a child under the age of 18 such as a partner, sibling, parent, adult child or other close relative? What should an employer consider in relation to time off?

The Employment Rights Act 1996 provides for the right to take a “reasonable” amount of unpaid time off work to deal with an emergency such as the death of a dependant which includes a spouse or civil partner, child, parent.  This right is only to time to deal with the “consequences” of a death, such as arranging and attending a funeral; it does not include time off for grieving and is not a right to compassionate leave.

However, there is other legislation, such as the Equality Act, which employers should take into account when considering time off.  This includes ensuring requests for leave from some employees are not dealt with less favourably than others because of a protected characteristic.  Employers should also make reasonable adjustments for those suffering from a mental health issue following a bereavement which could include allowing time off and they should try to accommodate any specific religious requirements for time off in connection with bereavement.  In addition, an employer is under a general duty of care towards its employees and should consider how best to support the employee to help reduce the stress involved.

Many employers have compassionate leave policies in place which provide for paid leave for a specified number of days in the event of the death of a close relative together with the ability to exercise their discretion to allow for longer depending on the circumstances.

Acas produced good practice guidance for employers on “Managing bereavement in the workplace” in May 2018.  This covers dealing with the notification, the immediate aftermath of the death, managing the return to work and looks at time off to help employees manage their grief.  Employees will respond differently to bereavement but it is important that the employer manages the situation so that the impact on the individual and the organisation is minimised.

For moreinformation, please contact Sara Wilson or Briony Richards.