Until recently, there has been no legal obligation on employers to give paid time off work to grieving parents. This will change on 6th April 2020 when the Parental Leave and Pay Regulations (or "Jacks Law", so called in memory of Jack Herd, whose mother Lucy has campaigned for mandatory leave for grieving parents when she discovered that her husband was only entitled to 3 days paid leave following Jack's death), come into force. The information in this article is based on the draft legislation which is currently before Parliament.
Jacks Law means that, for the first time, employed parents and adults with parental responsibility for the child (such as adopters, guardians and some foster carers) will be entitled to paid time off work to grieve for the loss of a child who is under the age of 18. The right will also cover parents who suffer a stillbirth after the 24th week of pregnancy and, if an employee loses more than one child, they will be entitled to a separate period of leave for each child.
The right to leave is a day one right available from the start of employment and it must be taken within 56 weeks from the date of death. Leave entitlement is up to two weeks which can be taken as a single block of two weeks or two separate blocks of one week each. This enables the bereaved adult to take the time when it suits their needs, for example, time off at anniversaries such as the first anniversary of the death or birthdays rather than immediately after the death.
The employee is obliged to tell their employer when they want to take leave, the date of death and whether they want to take one weeks leave or two. This does not have to be in writing so theoretically it can be done verbally. For leave starting within the first 56 days following the death, the employee just needs to tell the employer before they start work on that day that they want to take leave. If they are at work already, their leave will start the following day. For leave taken after 56 days starting with the date of death, employees have to provide one weeks' notice.
Employers are not able to request a copy of the child's death certificate.
The right to be paid for the leave applies to those employees who:-
- have at least 26 weeks continuous employment with their employer before the child's death;
- have been paid above the lower earnings limit for the previous 8 weeks; and
- remain employed at the date of death.
The rate of pay is expected to mirror statutory maternity/paternity/adoption pay. This is currently £148.68 per week for 2019/2020 or 90% of average weekly earnings where this is lower. There are certain notification requirements which can be provided within 28 days of the first day of the leave.
Whilst the introduction of this entitlement is a positive step, many employees may require more than 2 weeks off work and different religions also have different customs and traditions. Accordingly, in order to avoid falling foul of the Equality Act and also to support employees, employers are advised to be compassionate and flexible as the needs of each employee will be different. Employers should also consider discussing with employees, in a sensitive way, what information to share with colleagues.
Some people who suffer a loss go onto to experience mental health issues. Employers should be mindful that such mental health issues may constitute a disability under the Equality Act. This means that the employee will have additional rights such as the right to have reasonable adjustments made and protection from unlawful discrimination. In this situation, employers should seek medical advice to assist them with their decisions and discussions with the employee.
Employers are of course free to enhance the above provisions, offering their employees longer periods of leave and enhanced pay at what will undoubtedly be a very difficult and distressing time. Employers may also wish to consider whether to provide additional benefits such as counselling or bereavement support.
If you would like further information or assistance updating your current bereavement policies to reflect the new regulations, our expert employment team here at Fosters are only too happy to oblige.