Draft legislation has been published which would give bereaved parents a statutory right to paid time off work from 2020.

The legislation is a Private Members' Bill introduced by Conservative MP, Kevin Hollinrake. Although Private Members' Bills don't typically make their way onto the statute books, it is expected that this Bill will do so given that it has Government support.

Why is this legislation being introduced?

Whilst many employers would allow employees in this sad situation to take compassionate leave on a discretionary basis, this approach is not universal. Where an employer does not offer discretionary compassionate leave, the statutory rights of bereaved parents are fairly limited (see "What rights do bereaved parents currently have?" below). This legislation would create a new statutory right for bereaved parents to take paid leave from work following the death of a child.

Commenting on what drove him to introduce the Bill, Kevin Hollinrake MP said that he had constituents who had lost a child who had needed: "that all-important time and space away from work to grieve at such a desperately sad time". The Bill is supported by the Government. Business Minister, Margot James said: “We want parents to feel properly supported by their employer when they go through the deeply distressing ordeal of losing a child. That’s why Government is backing this bill which goes significantly further than most other countries in providing this kind of workplace right for employees.”

Bereavement charities have welcomed the proposal:

• Katie Koehler, Deputy Director of Bereavement Support of Child Bereavement UK, said: “The opportunity for leave at a time that feels right for them as individuals would reduce one source of possible additional stress and paid leave would give parents the time to make decisions based on their needs rather than their financial situation.”
• Francine Bates, CEO of The Lullaby Trust, said: “…it is vitally important that [bereaved parents] are supported by their employer and not made to return to work before they are ready".
• Debbie Kerslake, CEO of Cruse Bereavement Care, said: “It is vital that at such a distressing time those who are bereaved can take time away from work.”

What rights do bereaved parents currently have?

Many employers already allow employees in this situation to take compassionate leave (possibly paid) on a discretionary basis. However, where an employer does not do this, the statutory rights of bereaved parents to take leave from work are limited to the rights outlined below. With the exception of dependant emergency leave and annual leave, all of these rights would apply during the first year of a child's life only.

• Dependant emergency leave: employees have a "Day 1" right to take a "reasonable" amount of time off to deal with an emergency involving a dependant, which would include the death of a child. What amounts to a "reasonable" period of leave will depend on the circumstances and there is no statutory definition. This creates uncertainty on both sides of the employment relationship about the amount of leave the employee is entitled to take. Furthermore, this form of leave is unpaid.
• Annual leave: employees have the right to a minimum of 28 days' paid annual leave per annum. Many employers enhance annual leave entitlements above this level. Bereaved parents could potentially use their annual leave allowance to take paid leave following the death of a child.
• Maternity leave and pay: a female employee will retain her right to 52 weeks' maternity leave and 39 weeks' statutory maternity pay (if eligible) where she suffers a stillbirth after 24 weeks of pregnancy, or where the child is born alive at any point in the pregnancy but later dies. In this situation, her maternity leave will start on the day after the birth (if it has not already begun). She must take at least 2 weeks' compulsory maternity leave following the birth.
• Paternity leave and pay: an employee will retain the right to 2 weeks' paternity leave and statutory paternity pay where they suffer a stillbirth after 24 weeks of pregnancy, or where the child is born alive at any point in the pregnancy but later dies.
• Adoption leave and pay: an employee absent from work on adoption leave has the right to take further adoption leave and pay (if eligible) where their adopted child dies during the adoption leave period. In this situation, the employee will be entitled to take a further 8 weeks' adoption leave (provided this is still within the overall 52 week maximum adoption leave period). They will also be entitled to receive statutory adoption pay for this 8-week period (if eligible).
• Shared parental leave and pay: an employee absent from work on shared parental leave will be entitled to take any booked leave and receive statutory shared parental pay (if eligible). They can also vary the end date of any booked leave to reduce the period of leave to be taken or cancel any period of booked leave. However, they will not be entitled to request any further periods of leave.

What rights will bereaved parents have under the new proposals?

Under the proposals, parents who lose a child below the age of 18 (including a still birth after 24 weeks) would be given the following rights:

Right to leave

Employees would have a "Day 1" right to 2 weeks' leave. Where more than one child dies, the employee would be entitled to take separate periods of leave for each child. The bereavement leave must be taken within 56 days of the child's death.

The right to bereavement leave will be a stand-alone right and would not affect an employee's right to take other forms of leave (as outlined above).

Right to pay

Employees who have at least 26 weeks' service will also be entitled to receive two weeks' statutory pay at the lower of either the prescribed rate or 90% of their average earnings. Employers will be able to recover some or all of this payment from the Government.

Protection from detriment or dismissal

Employees will be protected from detriment, redundancy and dismissal as a result of taking bereavement leave.

What steps should employers be taking now?

The Bill had its second reading on 20 October 2017, however, the new rights are not expected to come into force until 2020. Although this is some way away, there are a number of steps that employers can take now to prepare for the change:

• Bereavement policies: if you don't have a bereavement policy in place, it would be sensible to put one in place to outline the entitlement to the new right and the process for applying for the leave. If you already have a bereavement policy in place, it would be worth thinking about whether any changes will be needed to dovetail with the new rules.
• Enhancement of rights: consideration should be given to whether you will enhance the statutory rules, for example by: allowing leave to be taken for the death of a child over the age of 18; permitting a period of leave greater than 2 weeks; and/or paying full pay for some or all of the leave period.
• Other support you can offer: consideration should be given to what other support mechanisms you can put in place for employees in this difficult situation. ACAS has published Managing Bereavement in the Workplace – a good practice guide, which contains many useful suggestions on how employers can support employees through bereavement. For example, they highlight the need to mindful of the requirements of different religions in relation to religious observance on death (e.g. Jews might need to mourn at home for 7 days and Muslims have set mourning periods depending on their relation to the deceased). Refusal of such a request would run the risk of a religious discrimination claim.

Parental Bereavement (Leave and Pay) Bill