Around 7,500 child deaths occur in the UK every year.
At present, UK employers are not legally required to provide paid leave for grieving parents. From 6 April 2020, working parents who lose a child under the age of 18 will be entitled to two weeks’ paid bereavement leave.
The Parental Bereavement (Leave and Pay) Act was enacted in September 2018 and is supplemented by regulations which detail how the new rights will operate. It will be known as ‘Jack’s Law’, in memory of Jack Herd, whose mother Lucy has been campaigning for reform since he drowned aged 23 months in 2010.
The Government estimates that 10,200 parents per year will be eligible for Parental Bereavement Leave, while 9,300 of these will also be eligible for Statutory Parental Bereavement Pay.
Summary of new provisions
In summary, the legislation provides for two weeks’ parental bereavement leave (PBL) for working parents on the death of a child aged under 18, or a stillbirth (from 24 weeks of pregnancy). Employees taking PBL will be entitled to statutory parental bereavement pay (SPBP) of £151.20 per week (or 90% of their normal weekly earnings, whichever is lower).
PBL is a right available to employees who meet the eligibility criteria from the first day of their employment. However, this is not the case for SPBP, which will only be paid to employees who have been continuously employed with their employer for 26 weeks prior to the death of the child, and who earned at least the lower earnings limit of £118 per week for the past eight weeks.
As well a ‘parents’ in the traditional sense, employees eligible for PBL include parents using a surrogate, the partner of the child’s parent and parents with whom a child has been adopted or placed for adoption.
PBL can be taken at any time within a period of 56 weeks beginning with the date the child died, which allows for employees to take time off around difficult periods such as the child’s birthday or the anniversary of their death. PBL can be taken in either periods of one week only, two periods of one week each, or two weeks’ consecutive leave. If employees lose more than one child, they are entitled to two weeks’ PBL in respect of each child.
Reaction to the regulations
Although this is clearly a step in the right direction, it’s fair to say that the Regulations have come in for some criticism.
Two weeks is not a long time to grieve the loss of a child. Assuming that most employees will want to take time off immediately following their child’s death, it is unlikely that the child’s funeral would even have taken place before the employee’s PBL ran out. Although the periods of leave can be split across 56 weeks, PBL is ultimately limited to two weeks, which many people feel is inadequate.
The Regulations also only provide for PBL and SPBP when the child is under the age of 18, yet some people feel that there is no difference between the loss of a young child and an adult son or daughter.
Thomas Mansfield spoke to one parent who ultimately left employment following the still birth of her daughter, Rosie.
“I know families who lost their baby at a few days old and were expected to just crack on back to normal. The truth is, when you lose a baby you start a ‘new normal’. Everything you knew before is different now. I was given compassionate leave but then had to get a sick note past a week. I took three months off, but even when I came back I wasn’t ready….Organising a funeral takes weeks, a post-mortem takes six weeks or longer, so people are expected to take a reduction in wages (i.e. sick pay) until they feel ready to go back.”
Clearly PBL and SBPB aims to assist employees with some of these issues, but many employees feel it doesn’t go far enough. However, many also recognise the potential financial burden placed on employers who are paying an employee who is not attending work.
Ultimately, whether an employer chooses to offer any additional leave or pay on top of their obligations under the Regulations will always be dependent on the individual circumstances.
So, what should employers be doing?
All employers should be reviewing their policies and practices and amending them as necessary before 6 April 2020. The Government has stated that draft guidance will be available ahead of implementation and that Acas will also be publishing guidance for employers. While many employers will already have compassionate leave policies in place, these may not meet the new requirements. It is therefore important to ensure that policies are updated so that employers and employees are clear on their respective rights and obligations under the Regulations from day one.