Jack’s law

01 April 2020

Danny Done, managing director at Portfolio Payroll, outlines what you need to know about SPBL and SPBP.

The government has confirmed that the right to take statutory parental bereavement leave (SPBL) has effect from 6 April 2020. Previously enacted into law in 2018, SPBL, also known as ‘Jack’s law’, gives parents the right to take two weeks of leave when they suffer the loss of a child.
In January 2020, the government finally announced a long-awaited April implementation date and also presented draft regulations to Parliament regarding how this right will work in practice. Therefore, with the actual regulations now in force, we are in a position to comment on the expectations that will be placed upon employers by this new entitlement. 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.

Employees will be allowed to take two weeks of SPBL when they suffer either a stillbirth after 24 weeks of pregnancy or the death of a child under the age of eighteen. 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. A ‘week’ is understood to be any one period of seven days and can begin on any day.

The Parental Bereavement Leave Regulations 2020 (http://bit.ly/3b2hPav) confirm that eligible employees will have 56 weeks following the death of their child in which to take SPBL. This is significantly more than the 56 days previously outlined within the original legislation enacted back in 2018 and has been lengthened to reflect the likelihood of a long-term grieving process. It also allows for the opportunity to take leave on the anniversary of the death.

As outlined in the draft regulations, the right will apply to employees who fall into the following categories:

  • birth parents, including where an individual has become a parent under a surrogacy arrangement or if the child is adopted but there is a court order in place for the individual to have contact
  • adoptive parents
  • foster parents
  • intended parents under a surrogacy arrangement where it is expected that, under the Human Fertilisation and Embryology Act 2008, the court would make a parental order
  • the partner of any of the above.

It should be noted that SPBL does not replace any existing statutory leave provisions. For example, employees retain the right to take time off to deal with emergencies involving dependants such as children, which can include the sudden death of a child.

The regulations set out that if an employee is to take SPBL within eight weeks of their child’s death, they will need to let their employer know by the first day of leave. In practice, the notice requirements are similar to those which most employers expect when an employee is to call in sick. The same short notice provisions apply if the employee wants to change the date on which they want to start leave.

Following the initial 56-day period, employees will need to provide at least a week’s notice to take leave, although employers would be free to accept a shorter period of notice if they wish. The employee would also need to provide a week’s notice to cancel it.

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.

Employees who have at least 26 weeks’ service with their employer will be entitled to receive statutory parental bereavement pay (SPBP) which will be paid at the same rate of other family leave payments (£151.20 per week from April 2020). In addition, the employee will need to earn at least the lower earnings limit for class 1 National Insurance contributions and have complied with the notice requirements.

Now parental bereavement leave is confirmed, employers will need to review current policies on bereavement leave and ensure the new right is included. It is likely that employers’ position on bereavement leave vary greatly because no law previously existed in this area, so they were free to design their own rules on who can take bereavement leave, how long for and whether it would be paid or not. This new entitlement will standardise rights to time off for eligible parents and ensure that at least two weeks’ leave is given.

The new law does not require employers to review bereavement leave provision for any class of individual other than those who qualify under the statutory scheme, although some employers may take the opportunity to do so.

This article was featured in the April issue of Professional in Payroll, Pensions and Reward magazine and was correct at the time of publication.