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 Whelan-Blake is the acting head of employment at DAS Law.

Kimberley Whalen-Blake

Acting Head of Employment, Solicitor

Learn more
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 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 , 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
General advice , Property disputes Ho-ho-home invasion: is Father Christmas trespassing?

When he enters your home, is Father Christmas actually trespassing? If he does so without your expressed permission, could he be prosecuted?

December 2018
General advice Beware the perils of sharing colleagues’ Christmas party antics on social media

Are people allowed to record and share your more embarrassing moments without your permission? What does the law have to say?

December 2018
General advice 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
General advice , Employment disputes The dos and don’ts of the office Christmas party

Hannah Parsons, solicitor at DAS Law, has the following advice to ensure that your office party does not result in writs and recriminations.

December 2018
General advice Can being a have-a-go hero land you in trouble with the law?

What can you do, and what can’t you do, when it comes to tackling and apprehending the bad guys?

November 2018
General advice Wearing a poppy at work

Can your boss stop you from wearing a poppy at work? Alexandra Owen, senior associate at DAS Law, tells employers and employees what they need to know.

November 2018
General advice , Property disputes How Halloween can turn into a legal fright night

Halloween is generally a ‘spooktacular’ time for all but a few bad apples can spoil the fun. So what can you do if someone chooses to play a trick and damages your property?

October 2018
General advice The closure of the workplace childcare voucher scheme: what you need to know

On Thursday 4 October 2018 the government will close the childcare voucher scheme to new entrants; here’s what you need to know.

October 2018
General advice New school year brings new clashes over school uniforms

Strict school uniform rules have angered parents across the country, but where does the law stand and what can parents do if they disagree with school rules?

September 2018
General advice , Goods and services disputes Weddings – what to do if your big day doesn’t have a fairy-tale ending

What happens if your wedding plans end in disappointment because of problems with your dress, your hair or the food?

August 2018
General advice Day Out Disaster – What happens if your little darling damages a precious work of art?

The recent news that a family were hit with a £100,000 bill after their toddler damaged a work of art will send shivers down the spine of families across the country who are planning their days out over the summer.

June 2018