The Government has confirmed that the statutory right to take parental bereavement leave will come into force from 6 April 2020. Ben McCarthy, employment law writer at Croner-i details the background behind the new leave as well as the entitlement and notification procedure.
Previously enacted into law back in 2018, parental bereavement leave, also known as Jack’s Law, gives parents the right to take two weeks of leave when they suffer the loss of a child. With April 2020 already set to be a time of many changes for employment law, employers need to be ready for the implementation of this right going forward.
Parental bereavement leave found its origins back in 2010 when Lucy Heard, who lost her son Jack, had been shocked at the contractual period of time off work provided to her partner in order to assist him in the grieving process. As a result, she campaigned for a legal period of leave to be afforded to all parents in this position. The Parental Bereavement (Leave and Pay) Bill was first published in Parliament back in October 2017 with the proposal of increasing protection for working parents who suffer the loss of a child under the age of 18. In proposing a day one entitlement to a two-week period of statutory bereavement leave, the Government aimed to create a legal structure for bereavement leave for the first time, although restricting it to a prescribed band of employee.
In 2018, the Government opened a consultation to seek public opinion on several aspects of the Bill. In particular, it asked for input from members of the public on who should be afforded this right, the proposed length of the leave and practical suggestions on how and when the leave should be taken. Another area for consideration was whether individuals may reasonably be expected to provide much notice prior to the leave and how much this should feasibly be. The consultation closed in June 2018 and the Act followed.
While the 2018 Act confirmed that this right was going to come into law, it did not specify when this would be and outlined that a number of key areas would require further confirmation, through additional regulations, at a later date. Finally, the Government has confirmed an implementation date of 6 April 2020. Meanwhile, these expected regulations have been released for legislation, but are currently noted to be in draft form.
As previously understood, employees will be allowed to take two weeks of leave when they suffer either a stillbirth after 24 weeks of pregnancy or the death of a child under the age of 18. A day-one right, employees will be able to take these weeks either as one single block of two weeks’ leave, or two separate blocks of one week’s leave. Unlike in the original legislation, it is also confirmed that they will have 56 weeks following the death of their child in which to take this leave. This is significantly more than the 56 days previously outlined within the legislation and has been lengthened to reflect the likelihood of a long-term grieving process.
Currently, it is understood that this right will apply to employees who fall into the following categories in relation to the child:
those with court orders providing daily care responsibilities
foster parents (although it may not include emergency foster care)
It should be noted that this leave is not expected to replace any existing provisions in place to assist employees. For example, employees will retain the right to take time off for dependants to deal with emergencies involving dependants such as children, which can include the sudden death of a child.
The draft regulations provide more information regarding notification procedures that will need to be followed by eligible employees. It is understood that, if an employee wishes to take the leave within 56 days of their child’s death, they must provide notice to their employer either before they are due to start work on their first day of absence, or as soon as is reasonably practical. Following the initial 56- day period, they will need to provide at least one week’s notice. Notification should include the date of the child’s death, the date they wish their chosen period of absence to begin and whether the absence will be for one or two weeks.
Entitlement to pay
It has also been confirmed that employees with 26 weeks’ or more continuous service with an organisation will be eligible for payment of statutory bereavement leave pay. It is expected that this will be paid at the same rate as other family related leave, such as maternity and paternity leave. Although this does set a statutory minimum, employers will be free to provide an enhanced rate, such as full payment, if they wish to. Taking such an action may be a useful way of encouraging the attraction and retention of staff but, again, will not be a legal requirement.
Now parental bereavement leave is confirmed, employers will need to make sure they prepare for it within company procedure and policy. Hopefully, it is not something that businesses will need to accommodate often. That said, they should also bear in mind that employees are legally protected from being unfairly dismissed, or subjected to a detriment, as a result of taking this leave.
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