A consultation on the above new statutory payment in Great Britain has been published. This article take an in-depth (i.e. long) look and provides links on how to respond...

In July 2017, Conservative MP Kevin Hollinrake introduced a Private Member’s ‘Ballot Bill’ to Parliament.  In short, the Bill makes provisions for a new statutory entitlement to leave and pay for employees whose children have died.  A second reading of the Parental Bereavement (Pay and Leave) Bill was held on 20 October 2017 and read line-by-line at the Public Bill Committee stage on 07 February 2018, at which time several amendments were made.

A revised Bill was published on 08 February 2018 and a consultation has just been published. Before looking at the consultation, it is worth looking at the Bill’s provisions:

Leave

Statutory Parental Bereavement Leave will apply to ‘bereaved parents’ suffering the bereavement of a ‘child’ under the age of 18.  As per the updated Bill, the Employment Rights Act 1996 will be amended to say that this will be a day 1 right with no minimum qualifying service criteria.  The 1996 Act will also state that employment rights must be maintained during and after leave and say that the employee must not suffer detriment or discrimination for taking the new statutory entitlement.

Much is left to the all-important Regulations made after the Bill which will:

  • Expand on who exactly parents are and the definition of a child (and also define a child as one that is stillborn after 24 weeks of pregnancy)
  • Prescribe that leave must be for at least 2 weeks and indicate the level of flexibility to be allowed when taking this statutory entitlement. This 2 weeks will be pro-rated for part-time employees
  • Prescribe that it must be taken within a certain period of time but at least allow for it to be taken up to 56 days after the date of the death of the child
  • Prescribe that where more than one child dies, the parent will have a statutory entitlement to leave in respect of each child
  • Prescribe the notices to be given to the employer and the records that need to be maintained

Pay

The Social Security Contributions and Benefits Act 1992 will be updated to state that there will be a statutory entitlement to pay where there has been a period of 26 weeks’ continuous employment and the earnings in the relevant period are above the Lower Earnings Limit for National Insurance.

Regulations will:

  • Prescribe that where more than one child dies and there is a statutory entitlement to leave for each child there will be statutory entitlement to pay for each child
  • Prescribe that the pay must be paid during the period
  • Prescribe the rate of payment, i.e. 90% of Average Weekly Earnings or the Statutory rate, whichever is the lower
  • Prescribe the recovery from HMRC (in line with the other statutory payments)
  • Prescribe that there is no requirement for the leave to be taken in consecutive blocks and can be paid at a daily rate
  • Prescribe that Statutory Parental Bereavement Pay cannot be paid where there is an entitlement to another statutory payment (SSP, SMP etc)
  • Specify the situations where Statutory Parental Bereavement Pay is not payable

Consultation March 2018

On 28 March 2018, the UK Government issued a consultation seeking views on options for inclusion in the above Regulations.  Namely:

Definition of a bereaved parent

Quite correctly, the UK Government describes eligibility as the crucial element.  This will all be determined according to the employee’s relationship with the child before the death, including caring obligations – i.e. not just a biological or adoption eligibility.  Discussions in the House of Commons have indicated that there are a number of employees that will naturally fall within the scope of being eligible for leave (and, depending on meeting the criteria, the pay).  However, the consultation seeks to identify who should be considered a bereaved parent, outside of the parents and those that have obligations that are parental in nature.

Question 1 is broken into 2 separate questions:

1) Who else do you think should be included within the definition of ‘bereaved parent’? and

2) Please provide reasons

How and when leave and pay can be taken

The Bill says that 2 weeks will be a statutory entitlement and any pay must be taken in whole weeks – akin to the other statutory payments.  The accompanying Regulations will allow flexibility of how the leave (and pay, if eligible) can be taken.  For example, should this be as a single block, non-consecutive weekly blocks or non-consecutive blocks of days?  This will be a new concept for employers and software and it is important that the rules for the taking of leave and pay are aligned.  Otherwise, there is the risk of allowing leave in days but pay in whole weeks only.

Question 2 is broken down into 3 separate questions:

1) Which of the following options for leave-taking would be most appropriate

  • Leave to be taken either as one week only or two consecutive weeks (i.e. like Statutory Paternity Leave and Pay)
  • Two weeks discontinuously, e.g. a week, then a further week taken at a later date (i.e. similar to Shared Parental Leave and Pay)
  • Two weeks, which can be taken in units of a day, recognising that only whole weeks of leave with an employer would attract the statutory payment from that employer
  • An alternative arrangement (please describe)

2) Please set out your reasons for your response

3) Please set out potential difficulties you consider may exist with any of the options

The window within which to take 2 weeks of leave and pay

The Bill says that the leave (and pay, if eligible) must be taken within a minimum of 56 days of the death of the child.  However, the Regulations can extend this minimum period.  Statutory Parental has to be taken within 56 days of the birth or placement of a child, however, the purpose of this is to allow the ‘father’ to bond with the child and support the mother.  That situation is not the same where there is the bereavement of a child, where different circumstances and complexities may mean that the 56 days criterion if not appropriate.

Question 3 asks 2 questions regarding the pay and leave ‘window’:

1) What do you think is the optimal length for the window?

  • 8 weeks
  • 26 weeks
  • 52 weeks
  • Other

2) Please provide reasons for your answer

Notice Requirements

This is all about setting in the accompanying Regulations the timeframe by which eligible parents advise their employer of their intention to take Statutory Bereavement Leave and Pay.  As the consultation implies, this is a tricky one, balancing the policy intention for a bereaved parent with the needs of the employer.  Plus, if the 56 days minimum period is extended and there is flexibility, this is more important.

Question 4 asks 2 questions:

1) Do you agree that parents should be required to provide notice to their employer?

  • If leave is taken very soon after the death of the child, yes or no
  • If leave is taken at a later period, yes or no

2) Please provide reasons

With regard a ‘reasonable notice period, question 5 asks 2 questions:

1) What is a reasonable notice period:

  • Where leave is taken very soon after the death of the child?
  • Where leave is taken at a later period?

2) Please provide reasons

With regards how this notice should be given to the employer, question 6 asks 2 questions:

1) How should this notice be given:

  • If leave is taken very soon after the death of the child?
  • If leave is taken at a later period?

2) Please provide reasons

Evidence Requirements

For all existing statutory payments, employees are required (or can be asked) to provide evidence of eligibility.  This is much more difficult in the sensitive circumstances of a bereavement.  However, the UK Government believes that it is necessary to establish an evidence ‘framework’.

In this regard, question 7 asks 2 questions:

1) Should evidence requirements for this provision mirror those of existing family leave, i.e. that evidence is not required unless requested by the employer, yes, or no?

2) Please provide reasons

Responding

Responses can be sent in a number of ways and it closes on 08 June 2018:

The UK payroll, software and reward professions have an opportunity to shape a new statutory payment that is workable for employers and, importantly, the employees that are affected.  This Great British piece of legislation will probably not take effect until 2020/21 and we need to look for developments in Northern Ireland as well.

I would urge individuals, employers and representative bodies to respond.  Further, just because you may be contributing via a representative organisation does not mean that you cannot respond individually as well.

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