Parental bereavement leave: a small step in the right direction

Author: Darren Newman

Darren Newman

While recognising the good intentions behind the recently published Parental Leave Bill, consultant editor Darren Newman questions the practical value of the proposed new right to paid parental bereavement leave.

Many employers will have some policy on offering compassionate leave to employees who suffer bereavement or face some other personal or family crisis. However, when it comes to statutory rights there is very little in place. Workers will of course be entitled to at least 5.6 weeks' annual leave and some of this may be used to take time off following bereavement - although taking annual leave in such circumstances is not always a practical option. There is also a statutory right to take time off for a family emergency. However, this is unpaid leave, so the right is really of use only to provide protection from victimisation for taking time off. In any event, emergency leave is intended to cover only short-term absences as it allows employees to "take action which is necessary" when an emergency occurs - it does not provide any entitlement to take time off to grieve.

Most people will therefore surely welcome the Parental Bereavement (Leave and Pay) Bill, which is expected to receive its second reading in the House of Commons on Friday 20 October. This is technically a Private Members' Bill, introduced by MPs Kevin Hollinrake and Will Quince - but unlike other Private Members' Bills it is almost certain to reach the statute books. The Bill implements a Conservative Party manifesto commitment and has full government support. Indeed it has clearly been drafted by civil servants and comes complete with a government impact assessment.

As is often the way with legislation of this type, the actual rights that will be created are not included in the Bill itself. This merely sets out the broad parameters and gives the Government the power to introduce regulations setting out the details of the scheme. However, we know that what is envisaged is a right for employees to take two weeks' leave in the event of the death of their child (aged under 18). The proposed leave has similarities with the existing right to paternity leave, and must be taken in the eight weeks following the child's death. The leave will be paid at the same rate as paternity leave - which currently means either £140.98 per week or 90% of the employee's average earnings (whichever is the lower). While the right to take leave will be available from day one of employment, the right to be paid will be subject to the employee having 26 weeks' qualifying service. It is expected that the right will apply from 2020 onwards.

In addition to the specifics of a scheme of this sort, it is also important to consider the message that the Government is sending about the importance of giving employees time off to grieve. This is clearly a very modest new right, but may well nudge many employers towards being more generous. For example, many employers may simply continue to pay employees as normal rather than paying the statutory minimum for bereavement leave. Like paternity and maternity pay, the bulk of the cost of bereavement pay will be reimbursed to employers through their national insurance contributions, so those employers that already provide for bereavement leave or that choose to pay more than the minimum will in effect receive a small subsidy.

Having said that, and although it seems churlish to pick holes in a scheme that is so obviously well intentioned and will be widely supported, there is something oddly limited about providing for paid leave only in the, thankfully rare, circumstances where an employee loses a child. The Government's impact assessment notes that there are some 4,300 child deaths a year and estimates that in each year the right to take leave will benefit some 8,000 employees out of the more than 27 million currently working in the UK. In other words just 0.03% of the workforce will qualify for parental bereavement leave each year. However, the Government expects take-up to be high among qualifying individuals, with the impact assessment estimating that it will be between 75% and 100%. I am less sure of that. What I think the estimate misses is the extent to which bereaved parents might be signed off sick rather than claiming bereavement leave. This is especially likely if the employer pays for sick leave in full rather than at the rate of statutory sick pay. Any statutory scheme will also inevitably come with procedural requirements. The employee will have to give some sort of notification to the employer and the Bill allows for regulations to specify what evidence must be produced and what notices need to be given to qualify for the right. For many parents the process of claiming bereavement leave might simply be too stressful and taking a period of sick leave will be a less complicated and less painful option.

It will seem strange to many that there will be a statutory right to take leave when losing a child but no right to take leave when losing other close family members. It may seem stranger still that a parent with a terminally ill child has no statutory right to take time off to care for or spend time with that child, but only a right to a short period of unpaid leave to make arrangements for care to be provided. Parents who lose a child after a long illness will perhaps find the right to then take two weeks off work rather a hollow one.

What the Government could perhaps work towards is a more general right to compassionate leave. Rather than being dependent on specific events, this could apply when an employee's personal circumstances are such that it would not be reasonable to expect him or her to continue working - with a limit on the number of weeks' leave that could be taken in any one year. If parental bereavement leave turns out to be a first step towards something more meaningful, this Bill will be a worthwhile exercise.