A new statutory right to Parental Bereavement Leave

6th April 2020 sees the introduction of a new statutory right to time off from work and statutory pay where employees qualify for this following the death of a child under 18.

The current position

Currently, some employers allow parents to take time off in this circumstance as compassionate leave, or would deal with this on a case by case basis; other employers may already have contractual bereavement policies in place (which may or may not need amending in light of the new statutory entitlement).

Employees are entitled to a reasonable amount of unpaid time off (often referred to as “emergency dependants’ leave”) to take "action which is necessary … as a consequence of the death of a dependant". This generally only enables an employee to deal with the logistical matters which arise as a result of a death. These include arranging and attending a funeral and, where appropriate, applying for probate and meeting with probate officers. There is no statutory right to be paid for this time off.  

The intention of the new Act is to provide certainty for employed parents and employers in relation to parents’ right to time off from work following the death of a child under 18.

Statutory Parental Bereavement Leave

From 6 April 2020, all employees who lose a child under the age of 18, or who suffer a stillbirth after 24 weeks of pregnancy, will be entitled to 2 weeks' statutory bereavement leave to be taken in one block of two weeks, or as two separate blocks of a week each.  This applies regardless of how long they have worked for their employer.

Employees will have up to 56 weeks from the date of their child’s death (or stillbirth) to use up their leave entitlement (for example, bereaved parents may decide to take the 2nd week of their leave entitlement around the anniversary of their child’s death). 

Where an employee is eligible to take parental bereavement leave as a result of the death of more than one child, the employee is entitled to parental bereavement leave in respect of each child.

The draft Regulations detailing the entitlement to statutory leave and notice provisions are set out in The Parental Bereavement Leave Regulations 2020

Statutory Parental Bereavement Pay (SPBP)

Employees with at least 26 weeks' service , who earn at least the  Lower Earnings Limit (which is £118 for the tax year 2019/20 and set to increase for the tax year 2020/21 when the entitlement comes into force), will also qualify for SPBP.   The leave is paid at the lower of £151.20 per week or 90% of salary.

The new legislation also provides the right not to suffer a detriment or be unfairly dismissed as a result of taking the leave entitlement, in line with the existing protection for employees taking statutory family leave.

Employers can recover 92% of the SPBP paid, or where eligible for Small Employers Relief, they can reclaim 100% plus an element for compensation which is currently 3%.

Records should be kept of payments made for three years after the end of the tax year.

The draft Regulations detailing the entitlement to statutory pay are set out in The Statutory Parental Bereavement Pay (General) Regulations 2020.

The Interaction of Parental Bereavement Leave with other statutory leave entitlements

Parents who lose a child from 24 weeks’ gestation are already entitled to take statutory Maternity Leave or statutory Paternity Leave in that circumstance. 

The Act would not change this entitlement but would give employed parents an additional right to time away from work following the death of a child aged under 18.

Where an employee is in receipt of another statutory payment, for example, Statutory Maternity Pay, Statutory Adoption Pay, or Statutory Shared Parental Leave Pay etc, SPBP cannot also be paid, but the employee can take Statutory Parental Bereavement Leave at a later date, within 56 weeks of the parent’s loss.

SPBP is not payable in any weeks in which the employee receives statutory sick pay, even for just part of the week.

As set out above in respect of the current position, employees will continue to be entitled to emergency dependants’ leave where this is relevant.

Practical Points

Where employers already have in place compassionate leave policies that include time off for bereavement that are at least as generous as the new statutory provisions, there will be no requirement to update those policies. 

For employers who do not currently provide for a right to time off in this circumstance, there will be a need to put in place a Parental Bereavement Leave and Parental Bereavement Pay employment policy from 6th April and to refer to the entitlement to Parental Bereavement Pay in the contract of employment for new staff recruited from this date. Where employers do not have express policies, the new statutory provisions shall automatically.