In 2017, Conservative MP Kevin Hollinrake introduced a Private Member’s ‘Ballot Bill’ to Parliament, making provision for a new statutory entitlement to leave and pay for employees whose children have died. With cross-party support in both Houses of Parliament, this became the Parental Bereavement (Leave and Pay) Act 2018 on 13 September 2018.

Budget 2018

Point 5.40 of the 2018 Budget Red Book confirms that a new statutory entitlement to leave and pay will come into force from April 2020. This will be called Statutory Parental Bereavement Leave and Pay and applies in Great Britain only (or where the contract of employment has been written under the Employment Rights Act 1996).

The new statutory entitlement applies to employees who suffer the bereavement of a child under the age of 18 years of age (including parents that suffer a stillbirth after the 24th week of pregnancy).

The 2018 Act

Simply, the Parental Bereavement Leave and Pay Act 2018 is the enabling legislation and everything of interest is contained in the ‘Schedule’. It has inserted:

• 80EA to EE (the non-conditional entitlement to leave) into the Employment Rights Act 1996, and
• Part 12ZD into the Social Security Contributions and Benefits Act 1992 (the conditional entitlement to pay)

The updated 1996 (leave) and 1992 (pay) Acts are now the places to which employers should refer, yet they do not make the new statutory payment work in practice. However, this is only the same as things like maternity leave and pay, where the rights are contained in the 1996 and 1992 Acts but do not contain the detail that employers and software developers need.

The Details?

The 2018 enabling legislation is absent on the vital information that employers need to make the new statutory payment work in practice, specifically:

• Exactly what is the definition of a bereaved parent?
• Leave and pay must be taken within 56 days of the date of a child’s death, however, can this leave and pay be taken flexibly, i.e. in non-consecutive blocks?
• What are the notice and evidence requirements the employee will submit to the employer?

Consultation and Responses

The above were the subject of a March 2018 consultation by the Department for Business, Energy and Industrial Strategy (BEIS).

After the UK Budget on 02 November 2018, the UK Government published its Responses document, stating that it had received 1,448 responses to the March 2018 consultation. This is a vital indicator of the nature of the secondary legislation (Regulations) that will make this new statutory entitlement work in practice. In this regard, BEIS confirm that they will engage with ‘relevant stakeholders’ to prepare the Regulations.

The Responses document clarifies as follows:

Definition of a Bereaved Parent

The Employment Rights Act 1996 (as amended by the 2018 Act inserting this statutory leave entitlement) is prescriptive when it says that the entitlement to leave and pay applies only to bereaved parents who are employees. The Regulations will extend this definition considerably, as was always the intention, to ensure that the new statutory entitlement can be used by more than just parents who are employed.

The Response document states that the Regulations will state that Bereavement Leave and Pay (where eligible) can be taken by individuals who have parental caring responsibilities for the child. Therefore, the entitlement will apply to birth and adoption parents as well as foster parents and kinship carers and the intention is that the Regulations prescribe a bereaved parent as:

• Biological / birth parents
• Adopting parents and ‘fostering to adopt’ parents in England and Scottish and Welsh equivalents
• Legal guardians
• Holders of Special Guardianship Orders in England and Scottish and Welsh equivalents
• Holders of Child Arrangements Orders in in England and Scottish and Welsh equivalents

However, the above does not fully represent the UK Government’s intention that the new statutory entitlement will apply if the relationship with the child is ‘parental in nature’. Therefore, look out for further BEIS guidance on this.

Taking Parental Bereavement Leave and Pay – How and When

The 1996 (leave) and 1992 (pay) Acts are not specific about how the new statutory entitlements can be taken. We knew that the entitlement is 2 weeks, however, was this going to be allowed to be taken flexibly in days or less-flexibly in blocks of one week? This was a difficult balancing act for the UK Government to reach a decision, weighing the needs of the bereaved parent on one hand with employer’s need for certainty and ease of administration.

The Response document confirms that the Regulations will state that leave and pay (where eligible) can be taken either as a single block of 2 weeks or 2 separate blocks of 1 week. This ensures that payment is made for each week of leave, as statutory payments can only be paid in respect of whole weeks. Whilst this is less administratively-burdensome on the employer, it still does not seem to be a barrier to an employer allowing the leave to be taken even more flexibly. However, remember that pay can only be paid in terms of whole weeks of Parental Bereavement Leave.

As regards when, the 1996 (leave) and 1992 (pay) Acts that now contains the new statutory entitlements says that both must be taken within 56 days for the child’s death. However, it is worded that Regulations must allow for ‘at least 56 days’, meaning that there was scope for this to be extended.

The Responses document does extend this timescale to 56 weeks from the date of death – not 56 days. Although this was not one of the options in the original consultation, stakeholders at a roundtable meeting suggested that the first anniversary of the death was particularly difficult for bereaved parents and a 56 week timescale would support parents at the time.

We should applaud the stakeholders at page 13 for raising this valid point.

Notice Periods for Taking Leave and Pay

This was always going to be a tricky one for Government to set in Regulations, given the sensitive nature of bereavement. However, employers are likely to require some notification, especially given that the entitlement period is extended to 56 weeks from the date of bereavement rather than 56 days.

Therefore, the Regulations will adopt a ‘two-tier’ approach to notification:

1. There will be no notice requirement for leave when it is taken ‘very soon’ after the bereavement. Regulations look likely to specify a ‘set period’ stating the number of weeks to be considered ‘very soon’
2. After the set period, there will be a notification requirement of at least one week

Notifications can be informal, meaning that we are unlikely (thankfully) to see a prescribed format.

The Responses document talks about notifications for Parental Bereavement Leave but not Pay. The reason for this is that payment can only be made when someone is taking leave, therefore, it is unnecessary.

Evidence Requirements

This is another tricky and sensitive issue for the UK Government to set in Regulations, as the 1996 (leave) and 1992 (Pay) Acts are silent on this.

The Regulations will align to Paternity Leave and Pay arrangements as follows:

• For leave, evidence of entitlement will only be required if the employer requests it. Whilst discussions are still on-going as to whether there should be a written declaration of eligibility in certain circumstances, there will be absolutely no requirement for a written declaration in the set period after the death of the child
• For pay, there will always be the requirement for a self-declaration of eligibility. This is in terms of information such as the date of death, the length of the leave and the parental responsibilities. It will not require the employee to certify that they meet the earnings or 26 weeks continuous employment tests. The employee will not be entitled to pay without the self-declaration, even in the set period after the death of the child. Therefore, it seems we are looking at the potentially confusing situation of unpaid Parental Bereavement Leave which will only be paid one the self-declaration is received by the employer

Next Steps

The UK Government has pledged to work with ‘relevant stakeholders’ to bring forward Regulations that will make this new statutory payment a reality from April 2020.

Of course, what we are looking for is Regulations to be in place with the relevant dates to ensure that this can work immediately on and after 06 April 2020. This means catering for people that are bereaved of a child on the first day of the tax year – and what about bereavements that happen before 06 April 2020 as a result of things like early stillbirths?

Let’s not forget that software developers cannot make things happen overnight and do need specifications, sufficient lead-in, development and testing time. Plus, there are internal policies and procedures for employers to consider and update.

The Regs cannot come soon enough. Is summer 2019 too early to hope for?

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