Last reviewed 7 April 2022

From 6 April 2022, parents in Northern Ireland will finally be given rights that parents in England, Wales and Scotland have had since 6 April 2020: the right to take time off following the death or stillbirth of their, or their partner’s, child.

Parental Bereavement Leave (PBL) was originally enacted in 2018. However, parents in Great Britain had to wait until 6 April 2020 for this to come into effect. Now that this important right has been in place for two years, we look take another look at the right and what it involves for employers and employees.

Background

Prior to the introduction of this right into UK law, whether or not employees could take time away from work to grieve was a matter of discretion for organisations. Even those that did choose to give this leave were not bound to pay for it, putting working parents who had suffered a loss of their child in an incredibly difficult position.

Parental bereavement leave, or “Jack’s Law”, came as a result of the actions of Lucy Heard, who, in 2010, lost her son Jack and was shocked at the contractual period of time off work provided to her partner at a time when he was going through the grievance process.

This led her to campaign for a legal period of leave to be afforded to all parents in this position and, ultimately, the Parental Bereavement (Leave and Pay) Bill. This was first published in Parliament back in October 2017 and included the proposal of increasing protection for working parents who suffer the loss of a child under the age of 18. This was, for the first time in UK law, the beginnings of a legal structure for bereavement, albeit it limited to a particular group.

A consultation was opened by the Government in 2018 to seek public opinion on several aspects of the Bill. The public were asked for their views on who should be given this right, how long it should be and what notice would it be reasonable to require (if any). Following this consultation, the Parental Bereavement (Leave and Pay) Act 2018 was created by inserting s.80EA–80EE into the Employment Rights Act 1996 (ERA).

In January 2020, it was confirmed that the right to take parental bereavement leave would come into effect from 6 April 2020 via the Statutory Parental Bereavement Leave (General) Regulations 2020 and the Statutory Parental Bereavement Pay (General) Regulations 2020.

Parental bereavement leave (PBL) — an overview

Eligible employees are entitled under this leave to up to two weeks off at any point from the death (or stillbirth) to 56 weeks after. Employees are entitled to take either a single week of leave, a single block of two weeks leave or two separate blocks of a week. This is designed to help as broad a range as possible of employees, as everyone’s grieving process is individual and unique.

Eligibility

Under the Act, those that are a “bereaved parent” are able to take statutory bereavement leave from the first day of their employment. This includes parents whose child (under the age of 18) dies, and parents whose baby is stillborn (after 24 weeks).

In order to capture those who are not the child’s legal or biological parents, “bereaved parent” is defined widely and is based on the employee’s caring responsibilities for the child. This means that those who are the “primary carer” of a child where their relationship is “parental” in nature are eligible to take this leave.

Parents include the child’s biological, adoptive (once the adoption order has been granted or the child was placed with the parents) or, where a child was born to a surrogate, parents, and their parent’s partner. That is, unless the child has been adopted or a parental order without contact is in place.

Matters in relation to surrogacy can be a little more complicated. There are various actors in a surrogacy situation, and in the case of bereavement, there is a wide range of individuals who could qualify for PBL, including the parents who were to raise the baby, and in some cases, the natural parent of the baby, amongst others.

Others who can also qualify for PBL are those with day-to-day responsibility for the child, where the child lives with the employee, and even where payment was made for care of the child, such as in a fostering situation.

Notification procedure

Where the leave is to be taken within eight weeks of the child’s death or stillbirth, notice is only required before the employee would normally start work on the first day of the time off.

However, a week’s notice is required when leave is taken between eight and 56 weeks after the child’s death (or stillbirth). This gives employers some certainty as to when the individual will be absent and allows for arrangements for cover to be made.

The following is required when giving notice to take PBL:

  • the date of the child’s death or stillbirth

  • when the parental bereavement leave is to begin

  • how much leave is being taken — either 1 or 2 weeks.

There is no requirement for the notice to be given formally or even in writing. There is also no requirement to provide evidence of the death or stillbirth.

Entitlement to pay

Employees with 26 weeks’ service or more are entitled to statutory pay, paid at the same rate as other family friendly leave, such as SMP or SSP, ie the statutory rate or 90% of earnings, whichever is lower. They must also earn over the lower earnings limit.

Conclusion

The Act in this matter sets out the basic rights of employees, but of course there is nothing to stop employers giving more, should they feel inclined to (this would need to be consistently applied to all employees). Even when simply complying with the statutory minimums, employers are able to offer grieving parents some small comfort at a difficult time.

Seek professional advice

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