From 6 April 2020, employees will be entitled to statutory parental bereavement leave if they are the parent of a child who dies under the age of 18 or they suffer a stillbirth after 24 weeks of pregnancy. Some parents may also be entitled to statutory parental bereavement pay.
The Parental Bereavement Leave and Pay Regulations 2020 will give all employed parents a statutory right to two weeks’ Parental Bereavement Leave (PBL) if they lose a child under the age of 18 or suffer a stillbirth after 24 weeks. The Regulations will take effect on 6 April 2020 and will apply irrespective of how long the parent has worked for their employer.
Entitlement to leave
Parents have the option to take PBL as a single week or as two continuous weeks or as two separate weeks within a period of 56 weeks following the child’s death or stillbirth. Parents, therefore, have the option of taking PBL whenever they need it most, which may be immediately following their loss or later, around the anniversary of the child’s death or stillbirth.
Where more than one child has died or been stillborn, the bereaved parent is entitled to a separate period of PBL in respect of each child. This differs from rights in relation to maternity and paternity leave, which are not increased where the pregnancy results in multiple births.
Technically, the Regulations provide that PBL may only be taken as whole weeks (seven day periods, either separately or consecutively). Employers may choose to be flexible and permit bereaved parents to take PBL in single days instead of whole weeks, if the parent so requests. Statutory Parental Bereavement Pay (SPBP) is, however, not payable unless the employee has not worked for seven days (see below for further details of SPBP).
Only employed parents may benefit
The right to PBL is only available to employees. Workers and self-employed individuals do not qualify. (The right to SPBP is available to a slightly wider group of individuals, including anyone treated as an “employed earner” for NIC purposes.)
The definition of “parent” is defined broadly to cover most types of parental relationship, including adoptive parents, intended parents under a surrogacy arrangement, guardians, and foster carers. The basic requirement is that the individual is living in the child’s home and has had day-to-day responsibility for the child’s care for at least four weeks prior to their death. The definition does not, however, extend to paid carers, older siblings, grandparents or aunts and uncles (unless they are also the child’s guardian or fall within another definition of “parent” for these purposes).
The partner of the child’s “parent” is also entitled to take PBL. They must demonstrate that they are living with the child and the child’s parent at the time of the child’s death or stillbirth in an enduring family relationship. This would typically capture step parents.
Notification requirements for leave
The Regulations intentionally provide flexibility and a lack of formality about when an employee may commence PBL during the initial weeks following their child’s death or stillbirth. During the first seven weeks, employees simply need to inform their employer before the time they are due to start work on the day on which they want their PBL to commence. For example, if their normal start time is 9am, they must inform their employer before 9am if they intend to start PBL that day. If it is not possible to inform their employer before this time, they are required to inform them as soon as reasonably practicable.
After the initial seven weeks, the Regulations require the employee to give at least seven days’ notice of his or her intention to take PBL.
The only information which an employee need provide to their employer in order to qualify for PBL, which may be provided in any form (including verbally), is the date of the child’s death or stillbirth, the date on which the employee intends to commence PBL, and whether they intend to take PBL as a single week, two separate weeks or as two consecutive weeks.
Statutory Parental Bereavement Pay
Parents employed with the same employer for at least 26 weeks before the child’s death or stillbirth may also be able to claim Statutory Parental Bereavement Pay (SPBP) for any period of PBL, providing they meet the minimal earning requirements. SPBP is paid at the same rate as other statutory payments for family-friendly leave, such as maternity and paternity pay (i.e. £151.20 per week, as of 6 April 2020, or 90% of average weekly pay if less).
The notification and evidential requirements for SPBP are more formal than in respect of PBL, and include providing a declaration that the employee meets the definition of “bereaved parent” under the Regulations. It would be advisable for employers to have a standard form readily available for employees to complete in the circumstances, in order to obtain the information required to process a claim for SPBP without unduly burdening an employee during an extremely difficult time.
Rights during and on return from PBL
An employee’s rights in these circumstances largely replicate the rights of employees taking maternity, paternity, adoption or shared parental leave. During PBL, an employee is entitled to benefit from all terms and conditions of employment other than those relating to pay, and to return to the same job that he or she was performing prior to taking PBL. If the employee takes PBL consecutively with a period of parental leave of comprising more than four weeks or consecutively with other statutory leave comprising more than 26 weeks (e.g. taking PBL consecutively with additional maternity leave) AND it is not reasonably practicable for the employer to permit the employee to return to the same job, the employee is entitled to return to another job that is both suitable and appropriate for the employee to do in the circumstances.
An employee who takes PBL is also entitled to protection from detriment or dismissal for having taken PBL.
Interplay with existing rights to family-friendly leave
It may be that employees also qualify for other statutory leave upon the death or stillbirth of a child. Employees are entitled to reasonable time off to make funeral arrangements, register the death and deal with the other practicalities of death. There is no statutory right to pay in these circumstances; however, employers may exercise their discretion to pay employees for time off for these purposes.
Where a child is stillborn after 24 weeks of pregnancy or otherwise dies after the mother has commenced maternity leave, the mother retains her full entitlement to maternity leave and pay (and, likewise, fathers and qualifying partners retain their entitlement to paternity leave and pay). Existing rights to adoption leave and pay, and to shared parental leave and pay, are likewise unaffected by the death of a child. Employees may choose to add one or two weeks’ PBL onto the end of any existing leave entitlement, providing they take the PBL within 56 weeks of the child’s death.
Conclusion
In many ways, it is regrettable that there was a need to enshrine such rights in legislation, as one would hope that all employers would respond in a compassionate way to an employee who suffers the loss of a child. The right to statutory pay will nevertheless assist employers in shouldering the financial burden of supporting grieving parents: all employers will be able to recover 92% of SPBP (by offsetting against any payments of PAYE and NICs) and small employers may be to recover 103% of SPBP. There are calls for the right to PBL and SPBP to be extended to other individuals who will be significantly impacted by the death of a child, including working grandparents.
Sarah Taylor