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Compassionate leave is time taken off by an employee following a bereavement. Many employers have a policy in place for compassionate leave which states how long employees are entitled to take off and whether it will be paid or not. Even if there are no formal policies in place, in practice most employers will allow employees to take time off following a bereavement or to attend a funeral.

Currently, there is actually no legal obligation for employers to grant any specific compassionate leave following bereavement. On that basis if such leave is granted the period of such leave and whether or not it is paid is very much at the employer’s discretion. Many employers recognise that having such specific policies in place will improve the well-being of their staff and shows compassion to the individual affected, as well as managing expectations of staff and ensuring consistency.

Although there is no statutory right to compassionate leave, section 57(A) of the Employment Rights Act 1996 does  gives a “day one” right for an employee to have “reasonable” time off work to deal with an emergency, such as a bereavement involving a dependant. This could be a spouse, partner, child, grandchild, parent, or someone who depends on the employee for care. ‘Reasonable’ is not defined and will depend on the situation but is likely to be limited to that which is necessary to deal with the immediate situation. An employer is not required to pay an employee for their time away from work unless stated otherwise in their contract.

Regardless of whether an employer has a formal policy on bereavement or whether they simply grant compassionate leave on an ad hoc basis, it is important that such leave is granted on a consistent basis. Employers will also want to consider whether there are special circumstances affecting employees which should be taken into account when deciding whether to grant leave, and what period of leave to grant. Employers granting bereavement leave must make sure that they do not treat some employees less favourably than others on grounds of a protected characteristic (such as age or gender). Furthermore, employees experiencing mental health difficulties as a consequence of bereavement, may be considered disabled in some cases; employers may need to make reasonable adjustments for these employees under the Equality Act 2010.

Finally, employers should also be aware that female employees who experience a stillbirth after 24 weeks are entitled to up to 52 weeks statutory maternity leave and/or pay. The death of a child born alive does not affect the mother’s entitlement to maternity leave.

Parental Bereavement Leave

On the 13 October the Parental Bereavement (Pay and Leave) Bill was published and  introduced a significant development by providing for the putting of parental bereavement leave on to a statutory footing. Originally a private member's bill tabled by Conservative MP Kevin Hollinrake, the Bill now has Government backing so is likely to become law.

The Bill introduces an entitlement for  parents to two weeks' bereavement leave if they lose a child under the age of 18 . It will entitle all employees to parental bereavement leave irrespective of their length of service with an employer. Furthermore, those who have at least 56 days continuous service will also benefit from statutory parental bereavement pay.

This Bill confirms that the rate of pay payable to employees will at a rate of £140.98 or 90% of average weekly earnings, whichever is the lower, the cost of which employers will be able to recover some (if not all)  from the Government.   Employee who seek to take advantage of the right will also have protection from detriment or dismissal for doing so. The Bill will receive a second reading in Parliament on 20 October, with the aim of it becoming law in 2020.

It is perhaps regrettable that there is a perceived need to introduce statutory regulation in this area but it will at least provide some certainty to both employers and employees as to their obligations in very sensitive circumstances.  Employers, both before and after the introduction of the new law will, of course, not be prevented from granting more a generous allowance of leave to bereaved parents than the minimum legal requirement provides for should they wish to do so. In the meantime, employers should review their current bereavement policy to ensure that any bereavement is handled appropriately.

If you have any queries about any of the issues raised above, please do not hesitate to contact a member of the Stronachs Employment team.

Ross Michie, Trainee Solicitor

Chambers Leading Firm 2019

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