Employment Law

New entitlement to Parental Bereavement Leave and Pay

The Government is introducing a new workplace right to Parental Bereavement Leave and Pay for parents who lose a child under the age of 18, including those who suffer a stillbirth from 24 weeks of pregnancy.
The Parental Bereavement (Leave and Pay) Act gained Royal Assent in September 2018.
Work is underway to get the Regulations ready to be laid before Parliament in 2019,
with the intention that they will apply from the common commencement date of
6 April 2020.

During the Act’s passage through Parliament, the Government consulted on several
key aspects of the policy to be set in Regulations. The Government published its
response to the consultation on 2 November 2018.

Who will be entitled?

Employed parents who lose a child under the age of 18 (or those who suffer stillbirth
from 24 weeks) will be entitled to 2 weeks of Parental Bereavement Leave as a ‘day-one’ right. Those with at least 26 weeks continuous service at the date of their child’s
death and earnings above the Lower Earnings Limit will also be entitled to Parental
Bereavement Pay, paid at the statutory flat weekly rate of £145.18 (or 90% of average
earnings, where this is lower).
The definition of a ‘bereaved parent’ is guided by the principle that those who are the
‘primary carers’ of the child should be the focus of the entitlement. The entitlement
will apply to the child’s ‘legal’ parents; individuals with a court order to give them
day-to-day responsibility for caring for the child; and primary carers who do not have
legal status, such as kinship carers.
In all cases, eligibility will be based on facts that will be clear to both the employee
and their employer in order to minimise confusion.

How can the leave and pay be taken?

Eligible parents will be able to take both the leave and pay as either a single block
of one or two weeks, or as two separate blocks of one week of leave and/or pay
(taken at different times).
The employee will have 56 weeks from the date of their child’s death in which to
take the entitlement so as to allow parents to take the leave (and pay) at important
moments, such as anniversaries, if they wish.

What notices will be required?

Leave: no prior notice will be required for leave taken very soon after the death. This
will apply for a set number of weeks, in recognition that employees are likely to need
to take leave at little or no notice. Employees will, however, be required to tell their
employer that they are absent from work – informal notification will be acceptable.
If leave is taken at a later point in time, a notice requirement will apply. The proposed
notice period is at least one week.
Pay: prior notice will be required for Parental Bereavement Pay irrespective of when
the pay is taken. This is in order to give employers’ time to process the request.

What will the evidence requirements be?

The Government is considering whether employers should be able to request evidence
of entitlement to Parental Bereavement Leave where an employee is required to give
notice (i.e. where the leave is taken at a later date). Where they do, the Government
proposes that this should be in the form of a written declaration that the employee
meets eligibility criteria for leave (this is the approach used for Paternity Leave and Pay).
This means that employers will not be able to ask parents for evidence of the child’s
death (e.g. they will not be able to ask for a copy of the death certificate) nor of their
relationship with the child.
However, when an employee needs to take time off work to grieve very soon after the
death of their child, they will not be required to provide a written declaration before
going on leave or subsequently. There will be no obligation on employers to ask for
this information, and no obligation on employees to provide it (i.e. it will not be part
of the eligibility requirements).

Source HMRC Employer Bulletin 75