New right to paid leave for bereaved parents: A welcome move

21st November 2017

This article first appeared in Legal Futures.

This year, like many in recent years, has seen some key changes within the employment law field, with the government, trade unions and lobbyists remaining endlessly engaged in seeking to impose their interpretation of fair balance between employers and their respective workforces.

Although consensus on that equilibrium can never really be achieved, sometimes there are pieces of legislative movement which are difficult to argue with regardless of your perspective: This is one of those.

Published on 13th October 2017, the Parental Bereavement (Pay and Leave) Bill would provide for the first time a legal right to parents who are employed and have suffered the death of a child, a minimum of two weeks’ leave in which to grieve.

Where the employee has been continuously employed for a period of 26 weeks or more, they will also benefit from statutory paternal bereavement pay. To balance this right with the needs of businesses, employers will be able to recover the cost of this statutory pay from the government.

For the purposes of the proposed bill, a bereaved parent will extend beyond the biological parents, and will be considered in reference to “the employee’s care of the child before the child’s death”. This should therefore extend the right to include all ‘atypical’ arrangements.

It is perhaps surprising that such a law is not already in place, but it is not; the current position is that while they would hope to find their employer understanding and flexible in this dire situation, there is no legal obligation to allow parents any paid time off to grieve.

In a challenging economic climate, commercial considerations may take precedence for the employer, and the leave may be given but unpaid, or in the worst cases not permitted at all.

For an employee, this could mean being forced to take sickness absence, with the lack of remuneration and the associated risk of dismissal for ill-health capability, or alternatively being forced back into the workplace without having had any time to grieve, both options negatively impacting their wellbeing.

The intention of the proposed bill is to enhance the employee’s rights and protections in this situation and to help with the financial implications faced by bereaved parents. As well as covering a child up to the age of 18, it also includes a provision to extend the right to cover a child stillborn after 24 weeks of pregnancy, should the secretary of state approve.

Following a period of years in which I would argue that employment law has shifted in favour of commerce over workforce, moving in favour of employers, this bill makes for really good reading. It is an encouraging statement and the protection provided is material.

But will it make a difference in real terms? Yes, I think so, but albeit perhaps not to many. While it would be a very unsympathetic employer which refused to provide an employee with limited paid time off in these incredibly difficult circumstances, they exist – these are not sympathetic times.

It’s probably fair to say, though, that the group likely to benefit is small. Further, given the bill provides for 90% of the employee’s weekly pay or the statutory weekly rate (currently £140.98), whichever is less, for just two weeks, it is difficult to see that it will have the impact it is designed to achieve in terms of limiting financial disadvantage for the bereaved.

This is particularly so when one considers that the overwhelming body of research supports that overcoming the grief from the loss of a child can take months or even years.

In order to truly make a difference to the support and retaining of employees affected by the bereavement of a child, employers need to go further than that presented in this proposed legislation; as with similar workforce rights, it is designed to be the very minimum the employer should do in the circumstances.

But it’s an improvement nonetheless. I’d like to say that the  bill is a move towards making the workplace a more compassionate place, but that doesn’t quite fit because if enacted it’ll become an employer’s obligation.

But will it make a small difference and perhaps give the feeling that an employer is being a little more compassionate? Yes, I think so, and that’s a really positive thing.

Kimberly Whalen-Blake is a solicitor at DAS Law.

The school nativity – danger in the manger?

Antony DiPalma, solicitor at DAS Law, looks at the photographic minefield of the school nativity play.

December 2018 Learn more
5 things you need to know about home schooling

What does the law say when it comes to parents taking on the challenge of home schooling their children?

February 2018 Learn more

Read more from the DAS Law blog

General advice New school year brings new clashes over school uniforms

Strict school uniform rules have angered parents who believe their children should be allowed some flexibility when it comes to uniforms. But where does the law stand and what can parents do if they disagree with school rules?

September 2019
Road traffic accidents , General advice What the law has to say about e-scooters, e-skateboards and bike hire schemes

Few of us could fail to notice the rise in the number of e-scooters and hire bikes on our roads .But what do owners and riders need to know?

September 2019
General advice Why won’t my employer give me a day off to grieve for my dog?

When a student from Glasgow took a day off work to mourn the death of her 14-year-old dog, she lost her job.

August 2019
General advice Understanding the law on facial recognition software

Where does the law stand on the use of facial recognition software? Hannah Parsons, Principal Associate Solicitor, DAS Law, tells you what you need to know.

August 2019
General advice How your dog could get you in trouble with the law

With ‘dangerous dogs’ back in the news, DAS Law’s Sarah Garner tells you what you need to know about a pet owner’s rights and responsibilities.

July 2019
General advice Your legal rights if you have private photos leaked

The UK Government has laws in place to combat ‘revenge porn’ and the sharing of private sexual materials with the intent to cause distress or financial gain, so what can you do if you find yourself in a similarly compromising situation?

July 2019
General advice , Holiday disputes Term-time holidays: fines for taking children out of school go up 93%

The summer holidays are fast approaching and the allure of cheaper holidays during term time is rising. However, schools are taking a much harder line when it comes to issuing fines to parents who take children out of school early.

June 2019
General advice 7 things you should know about driving fines

Millions of motorists across the UK are committing driving offences they did not know existed. Robert Hodson looks at the law around some of the most common offences.

May 2019
General advice Don’t let the law come calling when using your mobile phone while driving

Sam Phillips, a trainee solicitor at DAS Law, gives us the low-down on the law on mobile phones and driving.

April 2019
General advice If your engagement doesn't have a happy ending, who gets the ring?

If your fiancé(e) or unexpectedly breaks off the engagement, who gets to keep the engagement ring?

February 2019
General advice , Motorcycling How to fight a parking ticket

There are a number of important differences between parking tickets from the local council and those enforced by private companies. DAS Law has the lowdown on parking tickets and tells you how to pursue a dispute and avoid paying penalty charges.

February 2019
General advice , Protecting your business 6 things you need to know about missing the 31 January self-assessment deadline

With 31 January deadline fast approaching, HM Revenue and Customs (HMRC) has warned that 5,542,000 taxpayers have still to complete their Self-Assessment tax returns. What can you do if you miss the deadline?

January 2019