The Government has published guidance for employers on the new right to Statutory Parental Bereavement Leave and Pay which came into force on 6 April 2020.
As reported in our D-Brief earlier this year, there are particularly onerous notice provisions and eligibility requirements for employees to be able to take bereavement leave and claim statutory bereavement pay which is strange given the circumstances in which this will be used.
Under the Regulations, all employees who suffer the loss of a child under the age of 18 or suffer a stillbirth after 24 weeks of pregnancy, will be entitled to 2 weeks’ statutory leave from their employer. The leave can be taken as one week, two consecutive weeks, or two separate weeks within the first 56 weeks after the loss. These must be taken as whole weeks and a week for these purposes is a seven-day period starting on any day.
Employees who are eligible for the leave may also be entitled to statutory pay of £151.20 a week or 90% of their average weekly earnings (whichever is lower) with their tax and National Insurance Contributions deducted for the period they take as leave. Further information on this is set out below.
Eligibility
An employee who is eligible for Parental Bereavement Leave may not be entitled to Parental Bereavement Pay.
Simply put, to be eligible for Parental Bereavement Leave, the employee must be classed as an employee (regardless of their length of service), meet the criteria of being a parent/guardian of the child and give the correct notice for Parental Bereavement Leave.
To meet the definition of being a parent or guardian of a baby or child, an employee must fall within one of the below categories:
- Biological parent
- Adoptive parent
- Prospective adopter
- Intended parent under a surrogacy arrangement
- A “parent in fact” (someone looking after the child in that person’s own home for the last 4 weeks)
- Or the spouse, partner or civil partner of any of the above.
The employee also needs to comply with the strict notice requirements on when they want to take leave and how much leave they are taking. Notice should be given either before the time they would normally start work on the first day of the period (if within 0-8 weeks of the death or stillbirth) or one week before the period they wish to take as leave (if 9-56 weeks have passed from the date of death or stillbirth).
Whilst the above does seem particularly onerous given the circumstances in which this leave will be used, the guidance makes clear that the notification can be informal such as by phone, text or email and employers cannot ask for the notice in writing nor any evidence of entitlement to leave or details about the employee’s relationship to the child or baby.
To be eligible for Statutory Parental Bereavement Pay, an employee must have been continuously employed by their employer for at least 26 weeks up to the end of the ‘relevant week’. The ‘relevant week’ is the week (ending with a Saturday) immediately before the week of the death or stillbirth. They must remain employed up to the day the child dies or is stillborn, and must earn on average £120 a week (gross). To ask for Parental Bereavement Pay, the employee must within 28 days starting with the first day of the week they want to claim for, give notice in writing of the dates of the period they are claiming, the child’s name and the date of the child’s death or stillbirth. They must also give a self-declaration to confirm they are eligible because of their relationship to the child or baby.
Comment
Whilst the notice provisions are undoubtedly complicated, it is clear that the Government is more concerned with these when it comes to those claiming Statutory Parental Bereavement Pay. Employers should handle such requests for pay or leave with care and sensitivity. Employers may wish to put in place a written policy that deals with the new statutory right or may consider updating existing policies that deal with compassionate leave, to help their employees understand their rights and make the procedure less difficult for everyone involved.
How can we help?
If you need assistance or advice in drafting policies to align with the new regulations or are considering enhancing the statutory entitlement to Parental Bereavement Leave or Pay, please contact a member of the Employment & Pensions team or call 0207 880 4263.
