What is Bereavement Leave?

In light of recent times, sadly even more people are likely to experience the death of a person close to them (a bereavement) during their working lives.

Whilst there is no legal entitlement to paid time off work for the death of a loved one or close relative, what the law does state is that ‘reasonable’ time off should be given in the event of the death of a dependent. A dependent is classed as:

• their partner
• their parent
• their child (if under 18)
• someone else who relied on them

There is no definition of what is reasonable, so it is wise for employers to create a policy providing guidance on the process to be followed in such a situation and the entitlements the employee is eligible for, both statutory and any enhancements the employer wishes to offer.

It is worth noting that whilst having a policy which is fair and reasonable and non-discriminatory, every individual will deal with death differently. Some employees may be too upset to concentrate at work, whereas others might throw themselves into their jobs as a coping mechanism.

As such, it is vitally important that employers consider the individual’s physical and emotional wellbeing, not only during but also following the event, including the period after they return to work, being sensitive to the needs of the individual at that particular time. Open, sensitive, empathetic communication is of the utmost importance here. Not saying or asking anything is just as detrimental as saying the “wrong thing”.

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Time off for funerals

Paid time off to attend a funeral is not a legal requirement; however, time off to attend the funeral of a ‘dependent’ is. Employers again should consider what is reasonable and how they wish to approach the situation. The location and time it takes to travel to the funeral may be a consideration, whether this is paid (enhanced terms), unpaid (statutory) or whether the individual will take annual leave (paid).

Parental Bereavement Leave

In April 2020, Jack’s Law came into effect, allowing employees who lose a child aged under 18 or is stillborn after 24 weeks’ pregnancy to be entitled to two weeks’ statutory bereavement leave irrespective of how long they have been employed. Parents will be able to take this time off as one whole fortnight, or in two separate weeks, at any stage during the 56 weeks after their child’s death. If more than one child dies, the employee is entitled to two weeks’ Statutory Parental Bereavement Leave for each child. This right will apply to the:

• biological parent
• adoptive parent, if the child was living with them
• person who lived with the child and had responsibility for them, for at least four weeks before they died
• ‘intended parent’ – due to become the legal parent through surrogacy
• partner of the child’s parent, if they live with the child and the child’s parent in an enduring family relationship

Jack’s Law is named in memory of Cumbrian toddler Jack Herd who drowned in 2010. Jack’s mum, Lucy, began fighting for legal reform after Jack’s dad was allowed just three days off work following the tragedy, which included the day of the funeral.

In accordance with Jack’s Law, all parent employees will be entitled to the leave, but to be eligible to the pay, the parents must:

• have been employed for at least 26 weeks at the date of the death of the child; and
• earn more than the lower earnings limit (currently £120 per week before tax) on average for the period of 8 weeks ending on the date of the death of the child.

Statutory Bereavement Pay will be paid at the same statutory rate as maternity, paternity, shared parental and adoption pay per week, unless the employer chooses to offer an enhanced rate, in which case, this should be clearly set out in their policy.

What notice should be given?

During the first seven weeks, the employee must inform the employer before they are due to start work on their first day of absence where possible. From weeks eight to 56, they will need to provide at least a week’s notice. The leave can be cancelled or rearranged with the same degree of notice. This notice does not need to be in writing.

In order to claim Parental Bereavement Pay, the employee will need to notify the employer in writing that they meet the qualifying conditions for Statutory Parental Bereavement Pay within 28 days of the leave starting or, if this isn’t possible, as soon they are reasonably able to. If someone takes the two weeks off separately, they must give notice in writing for each week. Employees can give notice for their leave and pay in one document. The notice to claim parental leave and pay should include the following:

• the name of the person claiming;
• their relationship with the child;
• their entitlement to Statutory Parental Bereavement Pay;
• the date of the child’s death (or date of birth for a stillborn child); and
• the date(s) that they want the period or periods of parental leave (and pay if applicable) to start and finish.

Getting it right

How employers manage these situations will have a huge impact on not only the bereaved but also their colleagues and their employer brand. Don’t wait for the event to happen before you draft your policy; having a clear bereavement policy, written into your employee’s handbook, helps those managers dealing with the situation and the individual to understand the process to be followed, eligibility and entitlements.

A policy is important but how you deal with the individual in a caring, considerate and supportive way will ensure that the individual, colleagues and business needs are met through this most difficult of times.

If you need help drafting a Bereavement Leave Policy or support in dealing with sensitive and challenging situations such as this, please feel free to contact us.