ACAS (the Advisory, Conciliation and Arbitration Service, which is an independent public body providing information and advice on workplace relations and employment law) has published new guidance on bereavement in the workplace. This covers the legal rights staff have following the death of a loved one, in addition to best practice guidance encouraged by ACAS to help employers deal with grief and bereavement in a sensitive way.
We’ve summarised the legal position regarding bereavement leave below, along with some of the key points from ACAS’ best practice guidance for employers.
The legal position: Bereavement leave
Staff who are employees are entitled to time off from work following the death of a dependant. Additional bereavement leave rules apply for the loss of a child under 18, or a stillbirth after 24 weeks of pregnancy. We look at each of these in turn below.
Other members of staff (eg casual workers, agency workers and freelancers) are not legally entitled to this type of leave, but you may consider offering some form of bereavement leave to them.
Time off following the death of a dependant
Your employees are entitled to take a reasonable amount of time off to put arrangements in place following the death of a dependant, which includes their child, spouse or civil partner, partner living in the same household or their parent. For instance, this might include time off to arrange and attend the funeral, registering the death or applying for probate.
There is no legal right for this time off to be paid, but you may choose to offer this to your staff.
Time off following the loss of a child or a stillbirth
Some of your employees are entitled to a period of leave from work following the loss of a child under 18, or a stillbirth after 24 weeks of pregnancy. This is called statutory parental bereavement leave, and it might also be referred to as ‘Jack’s Law’.
To be eligible for statutory parental bereavement leave, your employees must meet an additional eligibility criteria (for instance, that they are the child’s biological parent). Our Q&A on Bereavement leave contains further information about these eligibility requirements. There are also certain notice requirements that your employee needs to comply with before taking parental bereavement leave, which are set out in our Q&A.
Eligible employees can choose to take either one or two weeks’ parental bereavement leave. If they choose to take two weeks, this can be taken either consecutively or as two separate weeks of leave. These employees may also be eligible for statutory parental bereavement pay (see below).
Statutory parental bereavement pay
If your employee meets the criteria for statutory parental bereavement leave (see above), they may also be eligible for statutory parental bereavement pay if they meet additional criteria (eg they have been employed by you for at least 26 weeks). See our Q&A on Bereavement leave for guidance on the eligibility criteria.
The rate of statutory parental bereavement pay is £151.97 per week, or 90% of their normal weekly earnings, whichever is lower.
Best practice guidance from ACAS
The legal rights outlined above reflect the minimum amounts of bereavement leave and/or pay that employers must provide. It is, of course, open to you to offer enhanced levels of bereavement leave and/or pay to your staff, and many employers do choose to do so.
It’s important to make sure that you comply with any relevant bereavement or compassionate leave policy that your business has put in place. However, you should also aim to be flexible in your approach, since grief is a personal process to each staff member and individuals may need more or less time than you have stipulated. ACAS’ guidance reinforces this message by encouraging employers to be compassionate and consider each staff member’s individual circumstances. Their best practice guidance includes the following recommendations:
1. Treating staff affected by miscarriage in a sensitive and compassionate way and considering offering time off if a miscarriage happens in the first 24 weeks of pregnancy.
2. Considering creating a specific miscarriage policy offering paid leave to staff, or including it within your bereavement policy, if you have one.
3. Offering some paid time off for bereavement leave if possible, or if this is not possible, discussing the possibility of your staff member taking the time as sick leave, annual leave or unpaid leave.
4. Communicating with your staff about what support they require and what you can provide, and keeping in contact with them whilst they are on compassionate leave to show your continued support. This will also allow you to best assess when it is suitable for them to return to work, while balancing this with giving them the space they need.
5. Providing tailored support to staff members when they return to work after the death of a loved one; for instance by suggesting a phased return, allowing them to temporarily work from home and/or to temporarily change their start or finish times.
6. Treating all staff equally in your approach to allowing compassionate leave. Putting in place a bereavement policy will help you to ensure transparency and consistency, and to avoid any potential discrimination claims. For a template policy you can use, see our Staff handbook and policies (you can choose to generate the policy either on its own or as part of a full employee handbook).
7. Remembering that some religious faiths may require a period of mourning at home after a family member has died; you should consider your staff members’ personal circumstances and accommodate them where possible.
Finally, bear in mind that some staff may experience mental health issues after the death of a loved one and you should ensure that you support them appropriately. ACAS has guidance on supporting the mental health of your staff at work.
Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.