Dealing with employee bereavement: frequently asked questions

Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on dealing with employee bereavement with some frequently asked questions that look at bereaved employees' entitlement to time off and the issues that may arise when employees return to work. Dealing with employee bereavement may be easier for employers that have clear terms on time off rights under their compassionate leave policy.

What should an employer do if it is informed that a member of staff has been bereaved?

The correct way for an employer to respond to the news that a member of staff has been bereaved depends on the circumstances, in particular the employee's relationship with the deceased. The employer should adopt a sympathetic approach at the outset and be as flexible as possible in granting time off.

Initially the employer should express condolences to the employee and be sensitive to the employee's wishes about how the news should be communicated to his or her colleagues. At an appropriate time the employer should advise the employee of his or her time off rights. In some cases it will be more appropriate for the employer to communicate this information in writing, particularly if the employee is absent from work immediately following the bereavement.

Provided that the deceased was a dependant of the employee, the statutory right to unpaid time off in relation to dependants, under s.57A of the Employment Rights Act 1996, will apply. A "dependant" is defined in the Act as a spouse, civil partner, child or parent of the employee, or anyone else who lives with the employee other than as an employee, tenant or lodger.

To be entitled to take time off under the statutory provisions the employee must inform the employer of the reason for the absence and how long it is likely to last, as soon as possible. In the event of bereavement this is not always possible and employers should be prepared to exercise some leniency in relation to this requirement.

If the employer operates its own compassionate leave policy, the employee should be informed of his or her right to time off under the policy and whether or not it is paid. The individual should also be given details of any counselling provision, or other support, that is available.

It may be appropriate to send flowers to the employee or offer to make a contribution to a chosen cause.

What should be included in a compassionate leave policy?

Employers that allow employees to take compassionate leave that is over and above the statutory right to time off should draw up a compassionate leave policy to ensure that the terms of the policy are clear and that it is applied fairly and consistently. Even where an employer offers only the minimum leave under the statutory provisions it is advisable for it to set this out in a policy so that employees are aware of their entitlement.

The policy should set out clearly who is entitled to compassionate leave, for what purpose the leave will be granted, how much time off is permitted and whether or not the time off is paid. It should also specify the notification arrangements for informing the employer of the need to take time off and the employer's arrangements for authorising time off. Where possible the policy should incorporate an element of flexibility for the employer to permit additional time (paid or unpaid) in exceptional circumstances, such as where the employee has to travel abroad to attend a funeral.

Some compassionate leave policies allow a period of paid leave, followed by a discretionary period of unpaid leave up to a maximum period. Employers may require employees to have a minimum period of service to qualify for paid leave (in contrast to the statutory entitlement to unpaid leave under the 1996 Act for which there is no continuous service requirement).

Employers could consider a tiered arrangement, whereby a longer period of paid leave in relation to close relatives (for example parents, siblings, spouses/civil partners and children) is allowed, with a shorter period of paid leave for more distant relatives or friends. The policy should incorporate a degree of flexibility to allow for less conventional family structures, for example where an employee has been brought up by grandparents. Employers also need to ensure that the policy does not operate in a discriminatory manner, for example by excluding same-sex partners.

How much time off should bereaved employees be permitted to take?

The amount of time off that a bereaved employee should be permitted to take depends on the circumstances of the bereavement, including the relationship of the employee to the deceased and the manner of death. The statutory right to time off for dependants permits a "reasonable" amount of time off. In the context of bereavement, the right is limited to time off to take action that is necessary in consequence of the death of a dependant. Case law has suggested that this is limited to matters such as registering the death, applying for probate and arranging and attending the funeral (Forster v Cartwright Black [2004] IRLR 781 EAT). The Employment Appeal Tribunal (EAT) in Forster was clear in its decision that the legislation does not introduce a right to compassionate leave. The statutory right to time off is therefore likely to be limited to a few days rather than weeks.

In practice, employees often need longer than a few days' leave in the event of bereavement. Where the deceased was ill the employee may also have needed time off prior to the death. Many employers are flexible in practice, allowing employees to take a longer period of time than that prescribed by the legislation, depending on the individual circumstances. Employers may permit a period of paid compassionate leave, and exercise discretion to allow a longer period of paid or unpaid leave in certain circumstances. Employers should also be aware that different religions have different customs and traditions in relation to death.

Employers should set out their compassionate leave terms in a policy and specify how much leave may be taken and whether or not, and, if it is, for how long, it is paid.

Are employees entitled to time off to attend funerals?

Under the statutory right to time off in relation to dependants, employees are permitted a "reasonable" amount of time off to take action that is necessary following the death of a dependant. This right was interpreted by the EAT in Forster to include time off to attend the funeral. Therefore employers are likely to be required to grant employees time off to attend funerals if the deceased was a dependant of the employee under s.57A of the 1996 Act.

If the employee does not qualify for time off because his or her relationship with the deceased does not come within the statutory definition of dependant, he or she may have a contractual right to time off under an existing policy or contractual term. Alternatively, the employer may operate a discretionary policy and allow employees to attend the funerals of certain relatives and/or friends. It is important for employers to be consistent when exercising their discretion.

Should time off for funerals be paid?

There is no statutory right to paid time off to attend funerals. Whether or not an employee is entitled to be paid when he or she takes time off to attend a funeral depends on the employer's compassionate leave policy or how it exercises its discretion in the absence of a policy, which it should do fairly and consistently.

What should an employer do if an employee takes extensive leave after bereavement?

A recently bereaved employee may request a longer period of leave than that granted under the employer's compassionate leave policy. Alternatively, the employee may fail to return to work at the end of the agreed leave.

If an employee requests additional leave the employer should decide whether or not the request can be accommodated and how any additional leave should be treated. When deciding whether or not to grant leave the employer will need to consider the circumstances, in particular how close the employee was to the deceased. Employers in this situation should try to be as accommodating as possible. The employer should make clear whether or not additional leave will be granted and whether or not it will be paid. Alternatively, the employee may be required to use part of his or her annual leave entitlement.

If an employee fails to return to work when due, the employer should attempt to contact him or her to try to agree an expected return date or further period of leave. Unauthorised absence would normally be addressed through the employer's disciplinary procedure. However, unless the absence is persistent and prolonged, the employer should be lenient where possible, and try to deal with the matter informally.

Some employees may take sickness absence after bereavement. Employers can require employees to comply with the normal sickness absence procedures in relation to absence reporting and certification. Where bereavement has triggered or exacerbated stress or depression the illness could amount to a disability under the Disability Discrimination Act 1995 (DDA). The employer will need to consider whether or not reasonable adjustments would help the employee return to work.

Employers should deal with each case on an individual basis, while being consistent and exercising discretion in a fair way.

How can employers support bereaved employees on their return to work?

Individuals react very differently to bereavement. Some employees will be glad to return to work and get back to normality. Others may find it much harder to cope and carry out their normal duties. Grief can result in mood swings and emotional outbursts and in some cases it can lead to depression. Employers should be mindful of this and provide appropriate support to employees where possible.

Employers could offer support by temporarily relaxing some, particularly public-facing, duties. A temporary period of flexible working may help an employee who has acquired additional childcare duties as a result of bereavement to adjust to a change in circumstances. Support also includes the provision of counselling, whether or not through an employee assistance programme. Where the employer does not provide counselling it could refer the employee to external sources of assistance (for example Cruse Bereavement Care (details on its website)). In some cases, it might be sufficient for the employee to have a sympathetic listener at work and an acknowledgement of the loss that he or she has suffered.

What should an employer do when an employee's performance or conduct is affected by bereavement?

Employees who have been bereaved may have difficulties performing their duties to the required standard, or may suffer from mood swings that cause problems in their relationships with colleagues and clients.

Employers are expected to be sympathetic towards bereaved employees and make reasonable allowances in the period following bereavement. However, there may come a point when the employee's conduct or performance continues to give cause for concern and the employer needs to take steps to address it.

An employer should initially take an informal approach and meet the employee to discuss ongoing concerns and explore whether or not the employer can do anything further to assist. If this does not result in an improvement, the employer should follow the usual procedures in relation to misconduct or poor performance.

Employers should be aware that the cause of an employee's poor conduct or performance could be a depressive illness triggered by bereavement. The illness may amount to a disability under the DDA, in which case the employer is under a duty to make reasonable adjustments to help the employee carry out his or her duties.

Next week's topic of the week article will be a checklist to help employers deal with employee bereavement and will be published on 26 October.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.