We have watched with interest over the last three years as the proposal for statutory parental bereavement leave progressed from a private member’s bill and into law.
New legislation for bereaved parents
We’re now pleased to confirm that this new piece of legislation came into effect on 6th April. Bereaved parents in England, Scotland and Wales may now be eligible for up to two weeks of paid leave if they lose a child under the age of 18 or suffer a stillbirth after 24 weeks of pregnancy.
The entitlement is to up to two weeks of leave to be taken from, or up to 56 weeks after, the date of the child’s death. The leave must be taken in weekly blocks but can be taken either consecutively or as two separate weeks (alternatively the employee may choose to only take one week of leave).
Provided they are eligible, the employee will be entitled to Statutory Parental Bereavement Pay, at the prevailing statutory rate (currently £151.20 per week) or 90% of their average weekly earnings (whichever is lower).
All the employee’s terms and conditions (bar pay) continue to apply during their leave and benefits such as holidays continue to accrue. As with any other form of statutory leave, employees are protected from suffering any form of detriment as a result of taking or seeking to take a period of Statutory Parental Bereavement Leave.
Who is eligible?
As with other forms of statutory leave, individuals qualify for leave and pay separately so they might be entitled to one but not the other. In order to qualify for both Statutory Parental Bereavement Leave and Statutory Parental Bereavement Pay the individual must either be the child’s parent or have had day to day responsibility for the child at the time of their death:
Parents – this includes biological parents, adoptive parents and the parents of a child who was born to a surrogate. Parents’ partners are also included in this definition, provided they lived with the child in an enduring family relationship.
Carers – carers with day to day responsibility for the child can also qualify for this leave provided that:
- The child had been living in their home for at least 4 consecutive weeks ending in the date of the child’s death;
- The individual or their partner had day to day responsibility for the care of the child; and
- The child’s parent or parents were not also living with them.
Except for in a few specified cases individuals will not qualify for this leave if they were being paid for looking after the child. The aim of this extension of the entitlement is to cover individuals such as grandparents or other family members looking after the child in the absence of their parents or, for example, foster carers.
To qualify for Statutory Parental Bereavement Leave the individual must be an employee and must give you the correct notice of their intention to take the leave.
How much notice the employee needs to give you depends on when they want to take their leave:
0-8 weeks after the date of death – they need to let you know that they are intending to take leave before their normal start time on the first day of their leave (or, if that is not reasonably practicable, as soon after this as they can).
9-56 weeks after the date of death – they must give you at least a week’s notice.
They will need to let you know:
- The date of the death or stillbirth
- The date they want the leave to begin
- Whether they are taking 1 or 2 weeks of leave
You can’t insist that this information is given to you in writing, or that they tell you in any particular way.
To qualify for Statutory Parental Bereavement Pay, an individual must:
- Have been employed by you for at least 26 weeks by the end of the week before the stillbirth or the child’s death and still be employed by you at the date of death;
- Earn at least an average of the lower earnings limit for National Insurance Contributions (currently £120 per week); and
- Give you the correct notice
The employee has up to 28 days from their first day of leave to ask you for Statutory Parental Bereavement Pay (SPBP). They will need to do this in writing and include:
- Their name
- The dates between which they wish to receive SPBP
- The date of death/stillbirth
- A declaration that they meet the eligibility criteria for Statutory Parental Bereavement Leave
HMRC have developed an online form you can use for this purpose or you can create one of your own.
Employees can cancel their notice to take leave and take it another time provided that they give you enough notice (this is the same amount of notice they were required to give you to take it, so in effect employees can only cancel leave if they have given you more notice than they are required to).
Other forms of statutory leave
If an employee is already on a different type of statutory leave at the date of the child’s death (even if this leave is for a different child) their Parental Bereavement Leave can only start once the other form of leave has ended. It doesn’t have to be immediately following the original statutory leave, but it must still have been completed within 56 weeks of the date of the child’s death. Equally, if Statutory Parental Bereavement Leave is interrupted by another form of statutory leave, the bereavement leave will be paused and the remainder taken following the end of the other leave.
Returning to work following a period of Statutory Parental Bereavement Leave
In most cases the employee will be entitled to return to the same job on the same terms and conditions as before they took their leave. The exceptions to this are where the bereavement leave has been appended to another period of statutory leave, which either includes 4 weeks of ordinary parental leave or which, when the consecutive periods of leave are added together, totals more than 26 weeks of leave. In these cases the employee is entitled to return either to their old job or, where this is not possible, to a different job that is “both suitable and appropriate for the employee to do in the circumstances”.
What does this mean for my co-op?
In practice, possibly very little, bar the new ability to claim a proportion of your employee’s pay back from HMRC for up to two weeks of leave. As responsible employers, co-ops have for many years been leading the way in respect of supporting their employees and members and are unlikely to be forcing any bereaved parents back into the workplace before they’re ready. The legislation is clear however, that where employees already have a corresponding contractual right to parental bereavement leave they may not take both statutory and contractual leave but may ‘cherry-pick’ the best parts of each entitlement. If you do operate a bereavement/compassionate leave policy therefore you will need to take this into account when discussing with your employee/member the leave that they would like to take.