New regulations concerning Statutory Parental Bereavement Leave have been introduced entitling parents to two weeks’ leave should they suffer the loss of a child, providing time to grieve.

It is known as Jack’s Law in memory of Jack Herd, whose mother campaigned for mandatory leave for grieving parents.

What is it?

Under the Parental Bereavement (Leave and Pay) Act 2018, parents who lose a child under 18 or suffer a stillbirth after 24 weeks of pregnancy are entitled to receive up to two weeks’ bereavement leave (“Bereavement Leave”).

Bereavement Leave can be taken either in one block of two weeks or in two blocks of one week. Bereavement Leave may be taken within a 56-week period commencing on the date of the child’s death. Any employee, irrespective of how long they have been employed, is entitled to Bereavement Leave.

Jack’s Law took effect on 6 April 2020.

Who qualifies for parental bereavement leave?

1. The child’s legal parents;
2. Parents who suffer a stillbirth after 24 weeks of pregnancy;
3. Natural parents who are no longer legal parents but who benefit from a contact order;
4. Prospective adopters;
5. Parents involved in surrogacy arrangements;
6. Individuals who have been caring for a child in their own home for at least four weeks; and
7. The partners of each such parent, adopter or carer.

Who qualifies for paid parental bereavement leave?

Employees who have at least 26 weeks’ continuous service will be entitled to be paid Statutory Parental Bereavement Pay (SPBP) during Bereavement Leave. Entitlement to SPBP is dependent on providing proper notice and parents having normal weekly earnings in the eight weeks up to the week before the child’s death of no less than the lower earnings limit for national insurance contribution purposes.

SPBP will be paid at a rate of £151.20 per week (from 6 April 2020) or 90% of weekly earnings if lower.

Employers may choose to top this up in line with their compassionate leave policy.

Employees who have not been employed for a continuous period of at least 26 weeks are entitled to two weeks’ unpaid Bereavement Leave.

What notice do employees need to give notice to take Bereavement Leave?

Employees must give notice (which does not need to be given in writing) to take Bereavement Leave, which must specify:

• the date of the child’s death;
• the date on which they choose any period of absence to begin; and
• whether they intend the period of absence to be one or two weeks.

Where Bereavement Leave is taken within eight weeks of the child’s death, notice must be given to the employer either before the start of the absence, if this is reasonably practicable, or if not, as soon as it is reasonably practicable to do so.

If Bereavement Leave is taken after eight weeks from the child’s death, one week’s notice must be given.

Are there any further notice requirements for Statutory Parental Bereavement Pay?

An employee must give written notice to their employer within 28 days of taking Bereavement Leave if reasonably practicable, or as soon as reasonably practicable. The notice must include:

• the employee’s name,
• the date of the child’s death and
• a declaration that they meet the eligibility criteria to receive the paid leave.

Does parental bereavement leave affect other family leave?

An employee may still take other family leave and periods of leave can run consecutively. If Bereavement Leave starts and the employee begins another period of statutory leave before the Bereavement Leave has ended, the Bereavement Leave will end immediately the other leave commences.

Any remaining entitlement to Bereavement Leave may be taken at the end of the other period of statutory leave provided that all of the Bereavement Leave is taken within 56 weeks of the date of death of the child.

What are the pension rights on parental bereavement leave?

Employees’ terms and conditions of employment, including pension contributions, continue to apply during the period of Bereavement Leave.

What else should employers be aware of?

Employers will not be entitled to request a copy of the child’s death certificate as evidence of an employee’s right to Bereavement Leave.

Small employers eligible for Small Employers Relief will be able to recover all SPBP, while larger organisations will be able to reclaim almost all SPBP.

Employers should be aware that different religions have their own bereavement traditions and funeral rites that must be followed. Refusing to allow an employee to observe their beliefs and customs could amount to religious discrimination.

Employees have the right to keep details of their child’s death confidential.

Employees who suffer a loss may experience mental health issues such as depression, anxiety or post-traumatic stress disorder (PTSD), which could constitute a disability under the Equality Act 2010. In these cases, medical advice should be sought and reasonable adjustments should be made. Offering counselling could also help bereaved parents on their road to recovery.

Employers’ Compassionate Leave policy should be reviewed in order to decide what policy they might introduce for Bereavement Leave and whether or not to offer any pay above SPBP.

Employers should make sure they understand the definition of parent for the purposes of Bereavement Leave so as to ensure the leave is not refused erroneously.

For further information, please contact Gill Brown or Jack Gardener on 01256 460830.

7 April 2020

Phillips Solicitors Limited

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