25 December 2018
This article was featured in the February 2019 issue of the magazine.
Diana Bruce MCIPPdip, CIPP senior policy liaison officer, outlines new rights to leave and pay
Currently, there is no specific entitlement to leave or pay for employed parents following the loss of a child. An employee may be entitled to special or compassionate leave if their workplace has an internal policy which affords employees time off work in particular situations (or the employer may allow compassionate leave on a discretionary basis).
Bereaved employed parents may also be eligible for other existing types of statutory leave depending on their personal circumstances. For example, section 57A of the Employment Rights Act 1996 gives a ‘day one’ right for an employee to have ‘reasonable’ time off work to deal with emergencies involving a dependant. This includes unpaid time off work to make arrangements following the death of a dependant, which may include organising and attending a funeral. A ‘dependant’ includes a child (of any age). ‘Reasonable’ is not defined in the legislation and will depend on the situation.
Although member of parliament Kevin Hollinrake introduced the Parental Bereavement (Leave and Pay) Bill in 2017 as a private member’s bill it had full cross-party governmental support. In September 2018 the Bill received Royal Assent with an in-force date in 2020, giving all employed parents a day-one statutory right to two weeks’ leave if they lose a child under the age of eighteen or suffer a stillbirth from 24 weeks of pregnancy. Parents will be entitled to this leave irrespective of their length of service with their employer, and the entitlement will apply in respect of each child. Pay (PBP) will be subject to qualifying conditions as found with other similar periods of statutory pay aimed at the working parent.
Parents whose average earnings over a prescribed reference period meet the lower earnings limit for class 1 National Insurance contributions and have at least 26 weeks’ continuous service with their employer (at the end of the week before the week of their child’s death) will be entitled to receive parental bereavement pay (PBP). Their employer will make payment and can reclaim a large proportion of it from HM Revenue & Customs as with other statutory payments. It will be paid at the statutory flat rate (currently £145.18 per week) or 90% of weekly average earnings where that is lower.
Protections will be in place with regards to an employee’s terms and conditions of employment while taking parental bereavement leave (PBL). The new Act’s provisions stipulate that bereaved parents will have a right to return to work following this absence. Regulations will provide that bereaved parents have a right to redress in the event they are dismissed or suffer some other kind of detriment as a result of taking or seeking to take PBL.
...definition of a ‘bereaved parent’ centred on the notion of ‘primary carer’...
Existing provisions for other family related statutory leave and pay rights, such as maternity, paternity, and shared parental leave and pay, will be unaffected by this statutory right. Both PBL and PBP are new, additional rights.
This is the first law of its kind in the UK and it will support those affected by the tragedy of childhood mortality. The statutory right will apply to Great Britain only; however, Northern Ireland do tend to mirror key regulations so may follow suit.
The CIPP frequently mention the high number of regulations that govern payroll and the associated processes. It may be of interest to know that no less than fifteen Acts of Parliament will be amended due to the introduction of the Parental Bereavement (Leave and Pay) Act 2018.
The Labour Market Directorate within the Department for Business, Energy and Industrial Strategy (BEIS) published a consultation in April 2018 to gather views and opinions on the delivery of PBL and PBP, focussing on several key areas including:
the definition of a ‘bereaved parent’
how and when to take PBL and PBP
notice periods for PBL and PBP
evidence of an employee’s right to take PBL and PBP.
The government published its response to the consultation in November 2018 confirming key aspects of policy to be set in regulations. As a result of the responses received, government has taken the following decisions:
the policy will use a broad definition of a ‘bereaved parent’ centred on the notion of ‘primary carer’, with the guiding principle being that the relationship should be parental in nature
PBL and PBP can be taken as a single block, or as two separate weeks
employed parents will have a window of 56 weeks to use the entitlement
notice requirements will be flexible and will distinguish between leave taken very soon and leave taken at a later period
evidence requirements will mirror existing requirements used for other family leave and pay rights, where it is practicable to do so.
In our response to BEIS, and at every opportunity since, the CIPP policy team stress that it is vital that these statutory rights are supported by clear, comprehensive and timely guidance. We will continue to work with BEIS and will look forward to reviewing draft guidance when it becomes available.