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Education ebriefing – Statutory parental bereavement leave and pay to commence in April 2020

  • United Kingdom
  • Education - Briefings

04-02-2020

Background

The Parental Bereavement (Leave and Pay) Act 2018 received Royal Assent as long ago as 13 September 2018. The intention was the Act would come into force in 2020, with further clarification on the provisions to be contained in regulations. The Act itself was brought into force on 18 January 2020 and two sets of regulations have now been laid before Parliament, one dealing with leave and the other with pay. The Parental Bereavement Leave Regulations 2020 and The Statutory Parental Bereavement Pay (General) Regulations 2020 will both apply to employed parents who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, from 6 April 2020. We summarise the key provisions below.

Which employees are covered?

The employee must be a “bereaved parent”, which means that at the date of the child’s death they were any of the following:

• the child’s parent

• the child’s natural parent who has lost their legal status as parent following an adoption or parental order but in whose favour a contact order has been made

• a person with whom the child had been placed for adoption

• an adopter with whom the child was living, following the child’s entry into Great Britain from outside the UK, and who had received official notification in respect of the child

• an intended parent of the child - someone who had applied, or intended to apply during the period of 6 months beginning with the day of the child’s birth for a parental order in respect of the child and who expected the court to make such an order

• the child’s parent in fact - someone who for the previous 4 weeks lived with the child in the child’s home and had day to day responsibility for the child’s care

• the partner of any of the above who was living in an enduring family relationship with that person and the child

The right to statutory parental bereavement leave

The right is from day one - so no minimum period of employment is needed.

The right is to take one or two weeks leave (beginning on any day of the week) - either in one block of two weeks or two blocks of one week each. The leave may be taken at any time within 56 weeks of the child’s death.

The notice which an employee must give to their employer to exercise their right has to specify the date of the child’s death; the date on which the employee chooses any period of absence to begin; and whether the employee intends that period of absence to be a period of one or two weeks leave.

Where the leave taken begins within 56 days of the child’s death, notice must be given by the employee before they are due to start work on their first day of absence or, if it is not reasonably practicable to do so, as soon as is reasonably practicable. Where, however, the leave taken begins after 56 days, at least one week’s notice must be given.

The regulations do not specify any particular form for the notice and the explanatory notes make it clear that the notice does not have to be in writing.

The employee can cancel the leave by giving the same notice they are required to give to take the leave but the employee cannot cancel any week of leave that has already begun.

During leave the employee is entitled to the benefit of all of the terms and conditions of employment which would have applied if they had not been absent, other than remuneration – as this is covered in the pay regulations.

As would be expected, the employee is entitled to return from leave to the job in which they were employed before the absence. The exception is if the employee combines the parental bereavement leave with a period of parental leave of more than four weeks or a period of other statutory leave which means the absence totals more than 26 weeks. Here the right is to return to the same job or, if that is not reasonably practicable, to another job which is both suitable and appropriate for the employee to do in the circumstances.

The employee also has right not to be subjected to any detriment by their employer because they took, sought to take, or made use of the benefits of, parental bereavement leave, or the employer believed that the employee was likely to take parental bereavement leave. Furthermore, dismissal for such a reason will be automatically unfair.

The right to statutory parental bereavement pay

To be entitled to statutory parental bereavement pay the employee has to have been employed by the employer for a continuous period of at least 26 weeks as at the relevant week (the week immediately before the one in which the child dies) and to have normal weekly earnings not less than the lower earnings limit. Statutory parental bereavement pay will be at the rate of £151.20 per week (or 90% of earnings if less).

Notice must be given before the end of the period of 28 days beginning with the first day of the period in respect of which payment of statutory parental bereavement pay is to be made or, where it is not reasonably practicable to give such notice, as soon as is reasonably practicable.

The evidence of entitlement required is the name of the person claiming the statutory parental bereavement pay, the date of the child’s death and a declaration that the employee is a bereaved parent within the meaning of the legislation. This must be provided in writing and at the same time as the notice in the paragraph above.

Comment

Many institutions will already have compassionate or bereavement leave policies in place and will approach such tragic cases with compassion and sympathy. The regulations recognise this by stating that where an employee already has a contractual right to bereavement leave the employee is not entitled to take both rights separately but may take advantage of whichever right is, in any particular respect, the more favourable.

However, these new entitlements are intended to highlight the importance of supporting bereaved parents and will create a clear “baseline” to which all employers must now adhere. It is estimated that around 7,500 child deaths, including around 3,000 stillbirths, occur in the UK every year and that this new entitlement will help to support around 10,000 parents a year.

This is likely to be the only the first of several new family-friendly measure institutions will need to take note of during 2020, as the Government has indicated its intention to use the forthcoming Employment Bill to introduce a raft of such rights, including neonatal leave and pay and carer’s leave.