Naturally upon the tragedy of losing a child, churches and other Christian organisations would want to pastorally care for their employees. There may be many ways that pastoral support is offered and in terms of time away from work, this is likely to have taken the form of compassionate leave. Compassionate leave is discretionary and there is no legal right to it (other than the statutory right to unpaid time off for dependants). As to whether or not time off for compassionate leave is paid or unpaid has also been at the discretion of the employer.
Changes to the law
Since 6 April this year, there is now a legal right to time off work for parents who lose a child, called Parental Bereavement Leave. The entitlement to parental bereavement leave is for parents or prospective parents (for example, a prospective adopter), and their partners, who lose a child or whose child is stillborn after 24 weeks of pregnancy. It operates in a way similar to paternity leave, allowing parents and their partners two weeks off work either taken in one block or in two separate blocks of one week. It can be taken at any time during the first 56 weeks after the child’s death.
During the first 7 weeks after the bereavement there is no legal requirement for parents to give notice of their intention to take this leave (although you may want to request in a policy that notice is given where possible). It will start to run from the date the employee tells you they want to take it. In the majority of circumstances, it seems likely that parents will use this entitlement to leave in the immediate two weeks following the death of their child. However, once 7 weeks has passed, if the leave has not been used, a week’s notice is required of the intention to take leave. An employee who has not started working for you yet may choose to take parental bereavement leave when they are due to start work in order to postpone the commencement of employment and would be eligible to this statutory right (assuming they hadn’t taken it with their previous employer).
If an employee has been employed for at least 26 weeks at the date of bereavement and has paid National Insurance contributions on their pay for the 8 weeks before the bereavement, they will be eligible for statutory parental bereavement pay. This is a set amount prescribed by the government and is the same amount as statutory paternity pay. It is payable in respect of whole weeks of leave (so cannot be paid for a few days here and there). In the example above, the employee who has not started working for you yet would be entitled to the leave, but not eligible for statutory parental bereavement pay.
Considerations for employers
It would be wise to consider whether or not your organisation wants to pay statutory parental bereavement pay or offer a contractual right to full pay for either one or two of these weeks. Many employers will choose to retain a discretion as to whether or not they will top up statutory parental bereavement pay rather than make it contractual. If you choose to do this, remember the importance of being consistent when applying this discretion. If you decide to offer full pay in these circumstances, you may need to update contracts of employment for new employees in light of the Good Work Plan and changes to what is included in contracts of employment since 6 April 2020 (see more on this in our article ‘The Good Work Plan – will it impact you?’). This situation does not change your usual practice for compassionate leave in regard to the death of any other relative.
Policies in staff handbooks will need updating to reflect the statutory right to parental bereavement leave and pay. If you need assistance with this, please speak with our Employment Team.
This information has been provided by solicitors working for Edward Connor Solicitors. It is designed for the purpose of knowledge sharing only and does not constitute legal advice.