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Bereavement leave and other April 2020 employment law changes

Parental Bereavement Leave

Eligibility and practicalities

New arrangements for leave under the Parental Bereavement (Leave and Pay) Act 2018 will come into force on 6 April 2020, giving those who suffer the loss of a child under the age of eighteen, or suffer a stillbirth after twenty-four weeks of pregnancy, a new entitlement to leave either in one two week block or two one week blocks.

Employees who are ‘bereaved parents’ will be entitled to the leave. The definition is wide ranging and will cover most parental and carer relationships.

The leave is a ‘day one’ right, meaning there is no minimum service required for an employee to be eligible, and can be taken at any time within the fifty six week period following the bereavement. The extension to fifty six weeks is to enable the parents to take a week off on the anniversary of the loss.

What are the notice provisions?

  • In the first eight weeks, no notice will be required; and,
  • between weeks eight and fifty six, notice of one week is required.

Employees taking the leave will be protected from detriment and dismissal, with no qualifying period of employment required. A dismissal linked to taking bereavement leave will also be automatically unfair.

Statutory Parental Bereavement Pay (SPBP)

Bereaved parents may also be eligible for SPBP.  This can be taken in either two blocks of one week or one block of two weeks, mirroring the leave itself. SPBP is paid at the same rate as other statutory payments such as paternity pay.

 In order to qualify for the pay the employee must

  • be a ‘bereaved parent’
  • be an ‘employed earner’ with the employer for a continuous period of twenty six weeks (ending with the week of the child’s death)
  • be employed until at least the day of the child’s death; and
  • have received ‘normal weekly earnings’ (calculated on the same basis as ‘normal weekly earnings’ for maternity pay) for the eight week period leading up to the week of the child’s death.

In contrast to bereavement leave, qualification for SPBP applies to ‘employed earners’ - a slightly wider category than ‘employee’.

Handling bereavement leave in practice

Although the above outlines the minimum statutory framework, this does not prevent employers from going further and providing a more generous scheme for bereaved parents.

For example, employers may wish to consider the following.

  • Allowing the leave to be taken in shorter periods – the legislation only accounts for the leave to be taken as week-long blocks, but an employer could allow this to be taken as days. If it is taken this way then the individual will not qualify for SPBP and employers should advise employees of this. Employers may wish to offer a contractual right to bereavement pay, even if the employee does not qualify under the statutory scheme.
  • Where the employee is dealing with logistical elements of the bereavement, advise them that they might be able to use their right to ‘time off for dependants’ rather than use bereavement leave.
  • Similarly, the requirement to give a full week’s notice (after week eight) could also be dropped. The effect of grief in these circumstances will be hard to predict and a flexible approach will likely provide better support.

As always, when considering leave requests and enhancing any statutory scheme, employers should be mindful of their obligations of fairness and the need for consistency of approach. Regardless of whether employers intend to enhance the statutory bereavement leave framework or not, a written policy should be put in place – either incorporating bereavement leave into a compassionate leave policy or drafting a standalone bereavement leave policy.

Other changes effective from 6 April 2020

Agency worker rights

The provision known as the ‘Swedish derogation’, excluding agency workers from a right to equal pay to with full time employees, will no longer be in force.

Once the twelve-week continuous service qualifying period has been completed there will be an entitlement to equal pay with workers who are directly engaged by the employer. Those agency workers whose current contracts contain a Swedish derogation provision must be informed in writing, by 30 April 2020, that this will no longer apply.

Holiday pay calculations

The reference period for calculating holiday pay for employees with variable hours will increase from twelve weeks, to fifty two weeks.

Extended and expanded right to employment particulars

 For individuals starting work on or after 6 April 2020, there will be a day one right to minimum particulars of employment under section 1 of the Employment Rights Act 1996. The minimum information which must be provided in the particulars of employment will be expanded and the right will extend to workers (currently it only applies to employees). Please click here for our full Briefing on the new requirements.

Contributors: Elgan Jones and Sarah Maddock

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