Parental Bereavement (Leave and Pay) Act 2018

Part 1: Parental Bereavement Leave

Part 1 of the Schedule amends Part 8 of the Employment Rights Act 1996 by inserting a new Chapter 4, consisting of sections 80EA to 80EE, to provide for an entitlement to Parental Bereavement Leave.

Section 80EA requires the Secretary of State to make regulations to give an entitlement to employed parents to time off work following the death of a child. It provides for conditions for that entitlement – determining exactly who is a ‘parent’ for these purposes – to be defined in regulations by reference to the employee’s relationship with the child who has died, including by reference to caring for the child prior to the child’s death.
Regulations must set the duration of leave and when the leave can be taken. The duration of leave must be at least 2 weeks; and the Regulations must establish a period within which the leave may be taken, which must extend to at least 56 days after the child’s death. The Regulations must also specify that, where more than one child dies, the employee is entitled to leave in respect of each child.
In addition, Regulations can make provision for how the leave is to be taken.
A child is defined as being under the age of 18 years and a week is any 7 day period.

The employee’s rights in relation to retaining their existing terms and conditions of employment, whilst taking Parental Bereavement Leave;
The employee’s obligations in relation to those terms and conditions;
The employee’s right to return to work once their leave period has concluded and the nature of the job to which they are entitled to return, as well as the terms and conditions applicable on return, and matters such as seniority, pension and similar rights.

The reference to ’terms and conditions’ in this context is not limited to contractual terms and conditions, but does not include remuneration. Regulations can specify what things should, or should not be, seen as ‘remuneration’ for this purpose.

Section 80EC allows the Regulations to make special provision for the redundancy and dismissal of employees during a period of Parental Bereavement Leave, including whether an employer is required to offer alternative employment, and the consequences of failing to comply with the regulations.

Section 80ED allows the Regulations made under 80EA to set out what notices and evidence must be given by an employee to their employer and what procedures are to be followed, in order to take Parental Bereavement Leave as well as any requirements for record keeping. They can also set out the consequences of not complying with any of these requirements or procedures.
The Regulations can also make provision for situations where an employee also has a non-statutory right to take Parental Bereavement Leave (for example, a right arising under their contract of employment).
Regulations can also modify the way in which a week’s pay is calculated in Chapter 2 of Part 14 of the Employment Rights Act 1996 to take account of periods of parental bereavement leave. The concept of ‘a week’s pay’ is widely used in that Act, for example in section 119 which sets out how the basic Employment Tribunal award for unfair dismissal should be calculated.

The entitlement to Parental Bereavement Leave under sections 80EA to 80ED applies on the death of a child under 18. Section 80EE enables Regulations to extend this provision to include parents of children stillborn after 24 weeks of pregnancy.

Paragraph 3 of Part 1 of the Schedule adds sections 80EA and 80EE to the list of powers in section 236 of the Employment Rights Act 1996 which are subject to the affirmative parliamentary procedure. That means that any Regulations made under these new powers would need to be debated in both Houses of Parliament before becoming law.