The publication of the Employment Rights Bill on October 10th attracted a great deal of attention and commentary, particularly in regard to the intention to remove the two-year qualifying period for the right to claim unfair dismissal and make it a day- one entitlement.
Among the less publicised content was the proposal to introduce an entitlement to Bereavement Leave.
Entitlement to time off, paid or unpaid, when a person close to an employee dies is a question that all employers find themselves having to take advice on from time to time and it often comes of a surprise that, except for the relatively recently introduced Parental Bereavement Leave, there is in fact no statutory provision.
Given that nothing in the Employment Rights Bill is going to take effect before the autumn of 2026 (due to the consultation process and the various Parliamentary stages) it is timely to consider the present and likely future position on employee entitlements.
At present, many employers commit to a contractual entitlement to a minimum amount of paid or unpaid bereavement leave or compassionate leave, depending on how closely related a deceased person was to the bereaved employee. But there is no legal obligation to do so.
Where the contract is silent, there is no specific provision except for when the child of an employee dies. Under Parental Bereavement Leave, when a child aged under 18 dies or there is a stillbirth after 24 weeks of pregnancy, the parent is entitled to either one or two weeks’ unpaid leave from day one of employment. If two weeks are taken, they can be taken together or separately but must be used within 56 days of the death or stillbirth. There is an entitlement to Parental Bereavement Pay (currently the lower of £183.04 per week of 90% of earnings) when service is at least 26 weeks and other conditions are fulfilled.
But where there is no contractual provision and the bereaved is not a parent of the deceased, what happens is at the discretion of the employer. There are obviously limitations on that – in the unlikely event that an employer refused any time off and insisted that the employee worked as normal, such unreasonable conduct on the part of the employer might give rise to a claim for constructive dismissal. But in general, the employer can be the decision-maker. Paid time off, unpaid time off, use of annual leave and combinations of those are all common solutions. Consistency between different employees is very important, but variations based on who has died and how close they were to the employee are perfectly reasonable.
So, what does the future hold when it eventually arrives? The way the Bereavement Leave proposals are presented is that the scope of the existing Parental Bereavement Leave regulations will be expanded. It is therefore likely that there will be a day one entitlement to leave and an entitlement to associated statutory pay after a qualifying period. The unknown element is what the relationship of the deceased person will need to be to the bereaved employee for the rights to take effect. Deciding where the line is drawn may be sensitive and controversial, but time will tell.
If you need more information about the upcoming changes or how we can help and protect your organisation please call us on 03333 215 005 or directly email us via: info@wirehouse-es.com.
