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9th October 2018

Legal Issues – Bereavement leave and other potential developments

The Government has introduced new legislation to support parents who suffer the loss of a child, which recently received royal assent.

Some of the detail of the Parental Bereavement (Leave and Pay) Act 2018 is still to be finalised in accompanying regulations, but the new law will allow parents to take up to two weeks’ paid leave within eight weeks of the child’s death. In the event that more than one child dies, a period of leave can be taken for each child.

A child for the purposes of the legislation is a person under 18, but also includes a stillbirth after 24 weeks of pregnancy. The exact definition of a qualifying parent isn’t clear, but it is likely to be related to the caring responsibilities of the employee at the time of the child’s death.

The leave must be taken in blocks of one week, but the two weeks do not have to be taken consecutively. The right to take time off will be open to all employees regardless of service, but will be paid only if the employee meets certain qualifying criteria, which are likely to be similar to those for other forms of family leave, i.e. 26 weeks’ service at the relevant time and earnings above a particular threshold.

The rate of pay itself is also likely to mirror that of other forms of family leave, which is currently set at £145.18 per week. As above, that detail will be confirmed in the forthcoming regulations.

Having a policy on bereavement leave is likely to be sensible when more detail is known, but as the new law won’t come into force until 2020, there is no rush to draft one.

The Government has been asked to reform other areas of family-related law, with the Women and Equalities Committee asking for changes such as paternity leave as a day-one right (as opposed to after 26 weeks’ service), replacing Shared Parental Leave (SPL) with 12 weeks’ paid parental leave at a slightly higher pay rate, and paid time off for fathers to attend antenatal appointments.

However, the Government has rejected those ideas, stating in particular that SPL has not had enough time to ‘bed in’ and that fathers’ rights must be balanced with the rights of employers. The same balancing act is not generally required in relation to pregnancy and maternity, as that period is seen as protected to safeguard the health of the mother and child.

One area on which the Government does intend to focus is flexible working. It’s not clear what any changes might look like, or when they might be implemented, but may include placing a duty on employers to consider whether all jobs could be done flexibly, and addressing that in any advertising.

The Government is also considering a requirement for employers with more than 250 employees to publish their policies on parental leave and pay, to allow applicants to consider whether they wish to work for that employer. As above, we don’t yet have detail on when this might come into force (if at all), but we will of course provide further updates when we have them.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

9th October 2018