Statutory Parental Bereavement Leave & Pay Regulations due to be enforced

The Government has published draft versions of The Parental Bereavement Leave Regulations 2020 and The Statutory Parental Bereavement Pay (General) Regulations 2020 (the Regulations), both of which are due to be effective from 6 April 2020 and introduce statutory Parental Bereavement Leave (PBL) and Bereavement Pay (SPBP) rights.

  1. Who is eligible for Parental Bereavement Leave (PBL)?

From 6 April 2020, employed parents (EP) and adults with parental responsibility (AWPR) who lose a child under the age of 18, or parents who suffer a stillbirth after 24 weeks of pregnancy, have a statutory right to take a minimum of two weeks’ unpaid leave. Those with ‘parental responsibility’ include adopters, foster parents and guardians, and is likely to also include those who have assumed responsibility for looking after a chid in absence of their parents. If an EP or AWPR loses more than one child, they are entitled to take separate periods of leave for each.

An EP or AWPR does not need a minimum length of service to be entitled to take PBL, the right to take PBL is a ‘day one’ employment right. According to the Government, the UK is first country in the world to offer the ability to take a full two weeks’ Parental Bereavement Leave to EP and AWPR.

When can the leave be taken?

The leave can be taken in separate blocks of one week or taken concurrently but must be taken within 56 weeks of the date of the child’s death.  The notice required to take the leave is flexible, so it can be taken at short notice.

Can an employer request evidence?

An employer is not entitled to request a copy of the child’s death certificate to prove right to entitlement to leave or pay.

  1. Who is eligible for Statutory Parental Bereavement Pay (SPBP) and what is the rate of pay?

To benefit from SPBP an employee must have at least 26 weeks’ continuous service and their weekly average earnings must be over the lower earning limit which is £118 per week for 2019 to 2020. The rate of pay is the lower of £151.20 per week or 90% of average weekly earnings.

  1. What enforcement action/claims can be made?

Detriment

If an employer subjects an AWPR or an EP to detriment because they have exercised their right to PBL or SPBP, then they will be able to issue a claim in the Employment Tribunal. The Regulations provide that EP’s and AWPR’s must not be subject to detriment by any act or any failure to act, examples include denial/exclusion from employer wide events or training opportunities, blocking access to resources, demotion etc.

If an Employment Tribunal finds that an AWPR or EP has been subject to detriment as a result of exercising their statutory right to PBL or SPBP, they can make an award for damages for ‘injury to feelings’. The awards for ‘injury to feelings’ range from £900 to £44,000.

Unfair dismissal

If an employer dismisses an AWPR or EP because they took, sought to take or made use of the benefits of PBL, then the dismissal will be ‘unfair’. Similarly, if an AWPR or EP is dismissed because an employer believed that an AWPR or EP was going to take PBL, the dismissal will be ‘unfair’. An AWPR or EP benefits from protection from unfair dismissal from day one when exercising their right to PBL because they do not need any minimum period of continuous service (an employee needs two years continuous employment service to benefit from unfair dismissal rights in most cases not involving the exercise of statutory rights).

It is important that employees are not subjected to a detriment or dismissed as a result of enforcing their statutory right to PBL or SPBP.

  1. What does this mean for employers?

Employers will need to ensure that:

  • Those who are EP’s or AWPR are permitted to take two weeks unpaid PBL (and are not subject to detriment or dismissal);
  • Those who are EP’s or AWPR and have at least 26 weeks’ continuous service, are paid for their PBL (payments of SPBP will need to be made in the same way as other related statutory payments such as statutory paternity pay); and 
  • Existing policies on PBL are updated to reflect the new rights afforded by the regulations, or if a policy did not exist, a policy is implemented/added to the employee handbook following the introduction of the Regulations.

If you are considering updating company policies and procedures or would like further advice on the regulations or how to respond to a request, please contact our employment team.

Claire Knowles - Partner

Mark Alaszewski - Associate

Rebecca Mahon - Solicitor

Amelia Wheatstone - Solicitor 

Adam McGlynn - Trainee Solicitor