New statutory entitlements to parental bereavement leave and pay

(This blog was co-written by Adam Wheal, trainee solicitor and Andrew Willshire, Solicitor)

This blog discusses the new statutory entitlements to parental bereavement leave and pay, in light of recent government guidance.

What are the new entitlements to parental bereavement leave and pay?

This new right came into force on 6 April 2020 and so it is important for employers to have it on their radar.  The regulations, made under the Parental Bereavement (Leave and Pay) Act 2018, implement new pay and leave entitlements to bereaved parents in respect of children whose date of death is on or after 6 April 2020.

The legislation, known also as “Jack’s Law”, is in memory of Jack Herd, who died at the age of just 23 months. His mother campaigned for the regulations, and it will make the UK a world leader in bereavement leave offerings by quite a significant number of days.

The Guidance

The government recently published guidance on 8 April 2020 in relation to Statutory Parental Bereavement Pay and Leave. In order to qualify for both Parental Bereavement Leave and Bereavement Pay, the individual must be both a parent (including if they have day to day responsibility) and an employee. Below we discuss these entitlements in further detail.

Statutory Parental Bereavement Leave

The guidance explains that employees now have an entitlement to two weeks’ statutory leave to be taken in one block or as two separate blocks of a week if they or their partner either:

• loses a child who was under the age of 18; or
• had a stillbirth after 24 weeks of pregnancy.
  (if the above applies they may also be eligible for Parental Bereavement Pay).

The leave can start on or after the date of the death or stillbirth, but must finish within 56 weeks of the date of the death or stillbirth.

The employee must give notice to take Bereavement Leave. The required notice they must give is based on the following:

a) 0-8 weeks after the child’s death or stillbirth

They must give the employer notice before the time they would normally start work on the first day of the period they want to take off work.

b) 9-56 weeks after the child’s death or stillbirth

They must give the employer at least one weeks’ notice before the start of the week or weeks they want to take off work.

There is no requirement for the employee to give their notice in writing. However, they should tell you the date of the child’s death or stillbirth, when they want their leave to begin, and how much they wish to take (either one or two weeks).

The guidance clarifies that if an employee was on another type of statutory leave when the death or stillbirth occurred, Parental Bereavement Leave must start after the other leave has ended. If their Parental Bereavement Leave becomes interrupted by another form of statutory leave, they can take their remaining entitlement to Parental Bereavement Leave after the other leave has ended.

Employers are able to offer more leave and pay, but they can only recover 2 weeks’ payment for each employee and for each death.

The employee’s normal employment rights will be maintained throughout the period of Bereavement Leave.

Statutory Parental Bereavement Pay

Employees can also receive Parental Bereavement Pay as of 6 April 2020 for the period in which they are on bereavement leave. However, in order to be eligible, they must:

• remain employed up to the day the child dies or is stillborn;
• earn on average £120 a week (gross);
• give the correct notice for Statutory Parental Bereavement Pay.

The amount the eligible employee is entitled to receive is either £151.20 a week or 90% of their average weekly earnings (whichever is lower). Tax and National Insurance will be deducted from this.

In relation to giving notice, the employee must ask for Parental Bereavement Pay within 28 days, starting with the first day of the week they want to claim pay for. This notice must be given in writing and it should explain the dates of the period they want to claim the Pay for, their name, and the date of the child’s death or stillbirth.

If the employee does not meet the eligibility criteria, the employer can refuse Parental Bereavement Pay. In order to do this, the must send the employee a completed non-payment form or their own equivalent form within 28 days of their pay request with evidence as to why it has been refused.

Employers can receive financial help in funding these payments if necessary. This can be in the form of reclaiming the statutory payments, or applying for an advance if they cannot afford the payments upfront.

Cancellation

Employees are able to cancel both Parental Bereavement Leave and Pay provided they give the necessary required notice. If the employee was starting leave or their pay was due to start within 8 weeks of the child’s death or stillbirth, they must give the employer notice on the first day of the week of leave or pay they want to cancel. If the employee was starting leave or their pay was due to start 9 weeks or later, they must tell the employer they want to cancel one week before their leave or pay was due to start.

Record keeping

The employer must keep relevant records for HM Revenue & Customs for 3 years from the end of the tax year they relate to. Such records should include:

• the start date when any Bereavement Pay was paid
• the payments that have been made, including dates
• a copy of the evidence of entitlement from the employee for Bereavement Pay including their written declaration, name and date of the child’s death or stillbirth
• details of any weeks the employee claimed Bereavement Pay but the employer did not pay, and the reason for this.

If you would like further guidance in relation to the above, please do contact a member of the Employment team.