Jack’s Law’ – new right to paid parental bereavement leave
From 6th of April 2020 new statutory entitlements to parental bereavement leave and pay come into effect. This will make the UK one of the very few countries to offer such support, and the first to offer a 2-week leave entitlement.
The objectives of the new entitlements are to give:
- bereaved employees a statutory right to paid leave to provide space for them to grieve following the death of a child
- a signal to both employees and employers on the importance and value of recognising bereavement and providing support for parents in such circumstances
The changes came about as a result of the experiences of the parents of toddler Jack Herd who drowned in a garden pond in 2010. Jack’s mother campaigned for changes to the law after her husband was given just 3 days leave from his job.
There are around 7,500 child deaths each year, including 3,000 stillbirths. The government estimates that these new entitlements will help to support around 10,000 parents each year.
This will be available to an employee parent who suffers the loss of a child under the age of 18 or stillbirth from 24 weeks of pregnancy. Irrespective of how long they have worked for their employer.
The definition of ‘parent’ is broad and extends beyond birth parents to include adoptive parents, foster carers and others with day to day responsibility for a child.
To receive payment the employee must have been employed for 26 weeks or more. They must also meet further eligibility requirements in line with the approach for other parental entitlements.
Employees will also have the right not to suffer any disadvantage by taking the leave. So the right to claim unfair dismissal if they are dismissed because they have taken it, wanted to take it or the employer believed it was likely to be taken.
The requirements for paid bereavement leave are not without their complications for both employers and employees. These include issues such a:s who qualifies as a parent; and what is onerous notice and evidence requirements in the circumstances.
Employers should be aware of any associated health issues arising as a consequence of a child’s death. These include things such as depression and PTSD, and also that these can constitute a “disability” under the Equality Act 2010 requiring the consideration of reasonable adjustments. Employers may also decide to offer more than the statutory minimums or use their discretion about a bereaved parent returning to work.
If you need any help/advice interpreting this new law or drafting/revising workplace policies please Contact Us.
More detail on rights and eligibility:
For Parental Bereavement Leave:
- Leave must be taken within 56 weeks, starting with the date of the child’s death and can start on any day of the week.
- If there is a loss of more than one child the entitlement is granted for each child.
- Parents have the option of taking leave as either a single 2-week period, or as 2 separate weeks in the year following their child’s death.
- Employees are required to give notice to their employer which varies according to when the employee wants to take leave. There is no requirement for this notice to be in writing (which differs for bereavement pay)
- The employee will need to tell the employer1; the date of the child’s death; the date on which leave is to begin; and whether it is for one or two weeks. There is no requirement for notice or any of the supporting information to given in writing, and also no requirement fo the employee to provide a copy of the death certificate.
- Where another period of paid statutory leave is being taken – e.g. Statutory Maternity Pay – then these periods will not be interrupted. Bereavement leave may be taken when the other payments end or at a later date, but within the 56 weeks.
- Additionally, the employee must give notice within 28 days of taking bereavement leave or, where that is not possible, as soon as reasonably practicable. Unlike bereavement leave this notice must be in writing. The employee is required to provide their name, the date of the child’s death and a declaration that they meet the eligibility criteria.
- Employers will be able to recover 92% paid, or where eligible for small employers’ relief, 100% plus an element for compensation which is currently 3%
For Bereavement Leave Pay:
- The employee must give notice stating the week/weeks for which payments are to be made within 28 days from the first day of the period payment is to be made for. Where this is not possible, as soon as “reasonably practicable”.
- At the same time as notice is given, the employee must also provide in writing their name, the date of the child’s death and a declaration that they meet eligibility criteria.
- Bereavement pay is not payable: in any weeks in which the employee is entitled to SSP; even for just part of the week. Employers will also be able to recover 92% paid (if eligible for small employers’ relief, 100%) plus an element for compensation.
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