Supporting employees who have suffered bereavement
As an employer, offering leave in circumstances where an employee has lost a loved one is not just a legal obligation, but also a compassionate gesture that fosters trust, loyalty, and a positive culture in the workplace.
Employers should be aware of their legal obligations regarding bereavement leave. While there is no express statutory provision for paid bereavement leave, employees (whatever their length of service) have the right under the Employment Rights Act to take a reasonable amount of time off to deal with emergencies including the death of a dependent. This is for unpaid time off only, unless the leave is for the death of a child under 18.
Parental Bereavement Leave allows all employees the right to 2 weeks off work if their child dies under the age of 18, or is stillborn after 24 weeks of pregnancy. The employee will also receive pay for this time off if they qualify. Further, if the mother has a stillborn child after 24 weeks of pregnancy, they can have up to 52 weeks of maternity leave and pay. The father is also able to take up to 2 weeks of paternity leave and pay. However, due to the sensitivity of the situation, the employer may wish to avoid the terminology of “maternity” and “paternity” leave.
Further details are given below.
Time-off for Dependants (statutory right to unpaid leave):
Under the Employment Rights Act, a dependant is defined as the employee’s spouse or civil partner, a child of the employee (in the context of death, a child who is over 18), a parent of the employee or a person who lives in the same household as the employee (but who is not their tenant, lodger, boarder, or employee). In order to qualify for this time off it must be necessary. The legislation provides that, among other emergencies, employees have a statutory right to take reasonable time off ”in consequence of” the death of a dependant. The right accordingly extends to taking time off to make funeral arrangements as well as to attend the funeral itself.
The Act does not limit the amount of time an employee is entitled to take off, and therefore it is not possible to specify the maximum period of time which is reasonable in any particular circumstances. What is a reasonable amount of time off will depend upon the nature of the incident and the employee’s individual circumstances. Disruption or inconvenience caused to the employer’s business should not be taken into account.
While the statutory right is to unpaid leave, an employer is of course entitled to apply more generous provisions.
Parental Bereavement Leave (statutory right to paid leave):
Parental Bereavement Leave is available to employees regardless of their length of service and applies on the death of a child under 18, including a stillbirth after 24 weeks of pregnancy. The right applies to the child’s parent(s), which includes an adoptive parent, prospective adopter, intended parent under a surrogacy arrangement, a parent “in fact” (someone looking after the child in that person’s own home for the last four weeks), or that person’s partner, but not a paid carer.
Leave can be one week, two continuous weeks, or two weeks taken separately and the leave may be used anytime in the first 56 weeks after death or stillbirth of child. During the first eight weeks, the employee must give notice of intention to take leave before their start time on the first day of leave. From weeks 9 to 56, leave requires at least a week’s notice.
Employees are protected from dismissal or detriment for exercising their right to leave. Paid Parental Bereavement Leave is available to employees with at least six months’ continuous service and normal weekly earnings of at least the lower earnings limit.
Compassionate Leave (discretionary):
An employer may allow ‘compassionate leave’ – this can be paid or unpaid leave for emergency situations. This could cover the death of someone who is not a dependent. However there is no statutory requirement to allow this kind of time off and there is no general right to compassionate leave at work. An employer’s policy should be clear as to how much compassionate leave may be required, in what sort of circumstances, and to what extent the employer’s approval is needed.
Summary
Employers should have clear policies in place in order to address leave of this kind.
Employers should establish clear and compassionate bereavement leave policies as part of their employee handbook or company policies. These policies should outline the process for requesting bereavement leave, eligibility criteria, the duration of leave allowed, and whether the leave will be paid or unpaid. Employers should apply bereavement leave policies consistently and fairly across all employees. Consistency helps to promote a sense of fairness and equity in the workplace and reduces the likelihood of resentment or morale issues among staff members.
Employers should also be flexible and recognise that grief is an individual experience. Employers should be flexible in accommodating employees’ needs when they have suffered a loss. This may include offering additional time off beyond the statutory minimum, allowing for flexible working arrangements, or providing access to counselling services or employee assistance programs.
Employers should also communicate to a reasonable extent with the employee during this time to express condolences, provide clear guidance on the bereavement leave policy and offer ongoing support and assistance to the bereaved employee. Managers should be adequately trained to handle sensitive conversations with empathy and professionalism, ensuring that employees feel supported and valued during this time.
If you have any questions regarding this topic do not hesitate to contact a member of BTO’s Employment Team.
This update contains general information only and does not constitute legal or other professional advice.
Dawn Robertson, Partner & Accredited Specialist in Employment Law: dro@bto.co.uk / 0131 222 3242 / Connect with Dawn on LinkedIn
Kimberley Tochel, Trainee Solicitor: kto@bto.co.uk / 0141 221 8012 / Connect with Kimberley on LinkedIn
