What new bereavement rules could mean for your business

The law is changing so that parents who have lost a child will be entitled to take paid leave.

by Michael Burd and James Davies
Last Updated: 17 Aug 2017

It has been estimated that one in ten employees are likely to be affected by bereavement at any one time. The death of a child can have an especially devastating effect on parents’ physical and emotional wellbeing. Well-managed, sensitive support from an employer can make a huge difference to the affected employee’s experience and their successful return to work.

Currently, however, there is no legal requirement in the UK for employers to provide paid leave for grieving parents. All employees have a statutory right to take a reasonable amount of unpaid time off work to deal with an emergency (which would include the death of a dependant), but there is no definition of 'reasonable' for these purposes and it depends on the circumstances. Disagreements between employees and employers regarding the appropriate length of leave can potentially arise.

This is set to change. The Parental Bereavement (Pay and Leave) Bill, introduced into Parliament last month by Conservative MP Kevin Hollinrake, would give employed parents who have lost a child the right to take statutory paid leave to allow them time to grieve. Although a private member’s bill, it is supported by the Government and would meet a Conservative election manifesto promise to ensure 'bereavement support' for employees – so there is a good chance it will become law in due course.

The Bill has not yet been published and its provisions will be developed over the coming months. The Government has said it will 'be working with businesses, employee representatives and campaigners on behalf of working families to better understand needs of bereaved parents and employers'. By the time the Bill has its second reading in the House of Commons in October, we can expect to know details of the statutory pay and period of parental bereavement leave that are envisaged. There has been speculation that the latter is likely to be an entitlement of two weeks.

While some organisations, particularly smaller businesses, may be concerned about the imposition of further regulation, most employers are likely to be sympathetic to the need for employees to be properly supported through such a difficult time. Naturally, employees will respond to bereavement in different ways. Some will welcome a swift return to work to restore an element of normality, while others will need to take more time.

Katie Koehler of the charity Child Bereavement UK regards the Parental Bereavement Bill as a way of giving parents greater choice: 'The opportunity for leave at a time that feels right for them as individuals would reduce one source of possible additional stress and paid leave would give parents the time to make decisions based on their needs rather than their financial situation.'

In the meantime, general guidance on managing bereavement in the workplace is available from the conciliation service Acas, including good practice suggestions for managing an affected employee’s absence and their return to work. This makes the point that advance planning and training will ensure that managers are better prepared to deal with what can be a difficult issue to negotiate. Further useful recommendations include:

  • Employers should consider having a written bereavement policy in place, as this can provide certainty and security at a confusing time.
  • Details of the death are private under data protection legislation. The employer should always ask the employee how much information they wish to give their colleagues and whether a more public announcement is appropriate. If the death was covered in the media, employers may need to deal with further queries to the company and manage other employees that might be approached by journalists etc.
  • Employers should be aware of the risk of racial or religious discrimination claims that may arise from refused requests for time off for religious observances on death. Certain religions require a set time for mourning – for example, observant Jews might need to mourn a close relative at home for seven days to "sit shiva", while observant Muslims have certain set mourning periods depending on the relation of the deceased relative (such as the 40-day Iddah to mourn a husband).
  • The effect of grief could manifest itself both physically and mentally, resulting in a long-term condition or illness. Employers should be mindful of this should there be a change in performance, behaviour or absence. Requests for time off or increased sickness leave should therefore be treated carefully, in the knowledge that a long-term condition could give rise to the risk of a disability discrimination claim.
  • Employers should remember that mothers who lose a child after 24 weeks of pregnancy, or during maternity leave, will not lose their entitlement to maternity leave and pay. Rights to paternity leave and shared parental leave (where notice of leave has been given) will generally also be maintained in these circumstances.

A 2016 survey commissioned by Child Bereavement UK revealed that less than a third of British adults who were working at the time of their bereavement said they had felt very well supported by their employer. Whatever the fate of the Parental Bereavement Bill, there is evidently scope for management practice to be improved in this area.

Michael Burd and James Davies, Lewis Silkin LLP solicitors, e-mail: employment@lewissilkin.com

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