Parental Bereavement (Leave and Pay) Act 2018

Part 2: Parental Bereavement Pay

30. Part 2 of the Schedule adds Part 12ZD (containing sections 171ZZ6 to 171ZZ15) to the Social Security, Contributions and Benefits Act 1992 to create an entitlement to Parental Bereavement Pay.

171ZZ6: Entitlement

31. Section 171ZZ6 provides that an employee will be eligible for Parental Bereavement Pay subject to meeting certain conditions.
32. These conditions include:
    • That the employee is a bereaved parent, because they meet the conditions to be set in Regulations as to their relationship with the child;
      • That the employee must have been continuously working for their employer for at least 26 weeks by the end of the week immediately before the one in which the child dies (this is known as the ‘relevant week’), and was legally entitled to be in that employment;
      • That the employee is still employed by this employer at the time of their child’s death and;
      • That, over an 8 week period ending with the end of the relevant week, the employee’s normal weekly earnings are not less than the Lower Earnings Limit (whatever this is at the end of the relevant week).

33. Section 171ZZ6 specifies that the pay entitlement is applicable per deceased child.
34. This section also ensures that the condition requiring someone to be legally entitled to be in the employment in relation to which they are claiming statutory pay will only apply when Section 63(3) of the Welfare Reform Act 2012 (which makes similar provision for Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay) comes into force.

171ZZ7 Entitlement: Supplementary

35. Section 171ZZ7 specifies that, in order to receive payments, an employee must give notice to their employer of the week or weeks they are intending to take leave. This must be in writing if the employer requires it.
36. Regulations may provide for when that notice must be given, and can disapply or modify the requirement for notice in specified circumstances. They can also set out requirements for evidence relating to proof of entitlement.
37. Regulations may specify that someone employed by the same employer for at least 26 weeks, but under different contracts of service which were not continuous, will nevertheless meet the test for continuous employment. They can also prescribe circumstances for other employees in which employment is to be treated as continuous.
38. The Regulations can specify how earnings are to be calculated or estimated for the purposes of deciding whether an employee meets the earnings threshold. This includes being able to identify particular types of payments which are to be excluded from the calculation. The Regulations may also provide for amounts earned from the same employer under two separate contracts to be aggregated for this purpose.

171ZZ8: Liability to make payments

39. Section 171ZZ8 states that an employer is liable to pay their employee Parental Bereavement Pay, conditional on that employee having at least 26 weeks’ continuous service with them by the end of the ‘relevant week’, and continuing to be employed by them at the time the child dies.
40. Regulations must make provision for liability for Parental Bereavement Pay in the event that the employer terminates their employee’s contract to avoid making this payment.
41. Regulations may also specify conditions where this liability will shift to HM Revenue and Customs.

171ZZ9: Rate and period of Pay

42. Section 171ZZ9 states that the weekly statutory rate of Parental Bereavement Pay will be set in Regulations, which may include provisions for different rates for different situations.
43. Regulations will specify the number of weeks’ entitlement (which must be a minimum of two weeks), and the ‘qualifying period’ within which the pay must be claimed (which must be a minimum of 56 days starting from the child’s death). The employee will be able to choose the week or weeks for which pay is claimed, in accordance with the Regulations, and the Regulations may allow pay to be claimed for non-consecutive periods, which must be blocks of a week or weeks.
44. Statutory pay is not payable if the employee is working for the employer who is liable to pay statutory pay. This is regardless of whether or not the work is performed under an existing contract of service, or a new one. It is also not payable if the employee is working for another employer who is not liable to pay statutory pay, but Regulations can prescribe situations where this does not apply for weeks taken as leave.
45. Regulations may specify further circumstances in which an employer is not required to pay statutory Parental Bereavement Pay.
46. Employees may choose the start and end point of their statutory pay week. A week is any period of 7 days. If it is necessary to calculate a daily rate of statutory Parental Bereavement Pay (for the purposes of these provisions, or any Regulations), this should equal one seventh of the weekly rate.

171ZZ10: Restrictions on contracting out

47. Section 171ZZ10 specifies that Parental Bereavement Pay rights cannot be diluted or denied in an employee’s contract, nor can an employee be required to contribute to the costs. This does not affect the validity of any agreement allowing the employer to make deductions from statutory pay, if the employer is also authorised to make the same deductions from any contractual remuneration which the employer is obliged to pay during the period (or would be authorised to make those deductions if there was an obligation to pay contractual remuneration).

171ZZ711: Relationship with Contractual Remuneration

48. Section 171ZZ11 states that the entitlement to statutory Parental Bereavement Pay does not affect an employee’s rights to payments associated with their contract of employment.
49. However, it allows an employer to set off any contractual remuneration paid to an employee during a period in which they are entitled to statutory pay, against the liability to make statutory payments to that employee, and vice versa.
50. Regulations can specify particular types of payments which are to be regarded (or not regarded) as contractual remuneration.

171ZZ12: Crown Employment

51. Section 171ZZ12 provides that bereaved parents employed by the Crown will have the same entitlements to Parental Bereavement Pay as those who work for other employers.

171ZZ13: Special Classes of Person

52. Section 171ZZ13 allows Regulations to set, with the agreement of HM Treasury, how the right to Parental Bereavement Pay applies to bereaved parents who are, have been or will be outside Great Britain, employed on board any ship, vessel, hovercraft or aircraft, or employed in continental shelf operations.

171ZZ14: Supplementary

53. Section 171ZZ14 defines an employer as someone who is paying secondary Class 1 National Insurance contributions in relation to any of the earnings of the bereaved parent.
54. An employee is defined as someone who is employed in Great Britain, either under a contract of employment or in an office with earnings.
55. Regulations can set out exceptions to this, and also circumstances where individuals who would not be classed as employees according to this definition are nevertheless to be treated as employees for the purposes of Parental Bereavement Pay.
56. Regulations may set out when two or more employers, or two or more employment contracts, should be treated as a single employer or contract.
57. A week is defined as a calendar week, except for in relation to section 171ZZ9 which deals with the weeks in which statutory pay can be claimed; in that case a ‘week’ can start or end on any day of the week.
58. An employee’s normal weekly earnings are calculated as the average weekly earnings that have been paid to them over a set period (to be specified in Regulations) under their employment contract with the employer liable for Parental Bereavement Pay. Regulations can set a different method for calculating normal weekly earnings in designated circumstances.
59. Regulations will also specify what is meant by ‘earnings’.
60. Regulations can make provisions for employees working for certain National Health Service (NHS) bodies whose contracts of employment have been treated as ‘divided’ into more than one contract, following the establishment of NHS trusts, to elect for all their contracts to be considered as one for the purposes of Parental Bereavement Pay e.g. determining eligibility and pay rate.
61. Regulations may also set the conditions that must be satisfied in order for an employee to be entitled to make this decision. These include the time within which an employee must make this decision, how notice of this choice must be given and to whom, as well as how the information that must be provided alongside the notice should be given.
62. Regulations can also specify which one of the person’s employer, under these circumstances, is liable to pay their employee Parental Bereavement Pay

171ZZ15: Power to extent Part to stillbirths

63. The entitlement to Parental Bereavement Pay under sections 171ZZ6 to 171ZZ14 applies on the death of a child under 18. Section 171ZZ15 enables regulations to extend this provision to include the parents of children stillborn after twenty-four weeks of pregnancy.

Parliamentary procedure applying to Regulations

64. Paragraph 6 of the Schedule specifies which of the powers to make Regulations are subject to the affirmative procedure, meaning that Regulations made under these powers would need to be debated in both Houses of Parliament before becoming law.