First introduced as a Private Members Bill back in 2017, the Parental Bereavement (Leave and Pay) Act 2018 became law in September 2018 and it is anticipated that this law will be enacted from April 2020. The Act requires Regulations to be laid that will give parents who suffer the death of a child a day one right to request leave.
Employment Rights are a devolved matter and so it remains for the Northern Ireland Assembly to decide whether to bring in legislation to match the rights that this Act of law gives to employees in England, Scotland and Wales.
Parental Bereavement Leave (PBL)
In line with so many other periods of statutory family leave, PBL will be a day one right for qualifying employees if they experience the death of a child, or children, from 24 weeks gestation through to 18 years of age.
PBL will be a maximum of two weeks that can be taken either as a single block or taken as two separate periods of a week.
Regulations have yet to be laid and employer guidance published, both have been subject to the same delays that have haunted many other policies in recent months. However, as we look to the guidance issued for software developers in October, we see many familiar features from those found with other family statutory leave entitlements.
Statutory Parental Bereavement Pay (SPBP)
As with any statutory payment, there is jargon to be understood, in this case:
- The ‘Relevant Week’ – is the week, which ends on a Saturday, before the week in which the child dies.
- The ‘Relevant Period’ – is a period of 8 weeks ending with the relevant week.
The start date for any claim for SPBP will be for a death that occurs from 6 April 2020.
Leave with payment of SPBP must be taken within 56 weeks of the date of death and it is for the employee to decide whether they take some or all of it – they may choose not to. The lengthy period takes account of the fact that parents may wish to take time away from work, not only near to the time of death, but also on or around the anniversary of the death.
As the entitlement period spans 56 weeks, there is a chance that an employee may change employments and as long as the employee met all conditions at the relevant week, they will continue to be entitled to receive SPBP in subsequent employment.
Where the employee becomes eligible for SPBP as a result of the death of more than one child, then entitlement to leave will be two weeks per child and the employee would be entitled to two weeks SPBP for each child.
Interaction with other statutory payments
Where an employee is unable to work due to illness and is in receipt of Statutory Sick Pay (SSP) during any part of the week, they will not be entitled to SPBP for that week.
Where another period of statutory leave is being taken, for example, Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP) etc, SPBP cannot interrupt that payment but can be taken when the other pay ends – or at a later date, but within 56 weeks.
SPBP qualifying conditions
1a – length of service and earnings
For an employee to qualify for SPBP they will need to have:
- Been continuously employed for at least 26 weeks at the relevant week
- Have average weekly earnings (AWE) matching or exceeding the Lower Earnings Level (LEL) in the relevant period
- Given the employer the correct notice, in writing, within 28 days of the first day of the SPBP period, or where not reasonably practicable then as soon as is ‘reasonably practicable’
- Completed an employee declaration which includes:
- The name of the person claiming SPBP
- The date of the child’s death
- The period/s that SPBP is to be paid.
1b – employee’s relationship with child
In addition to meeting the length of service and earnings conditions, the employee must also meet conditions to be an eligible ‘bereaved parent’.
At the date of death, a bereaved parent could be:
- The child’s parent, including adoptive parents after a formal court adoption order and parents of a child born to a surrogate after a formal court parental order has been made
- Adoptive parents before a formal has been made but from the placement date
- The partner of the bereaved parent, where they live with the parent and child in an enduring family relationship.
- The child’s ‘parent in fact’.
Parent in Fact
A parent in fact will not meet the above conditions but the child will have been living with them in their own home for a period of at least four weeks, ending with the date of death, and they will have had day-to-day responsibility for the child. There are exceptions, such as, where the child’s parent who has parental responsibility is living on the same premises, for example a mother living with the grandparent.
SPBP payment and recovery
The rate payable will be in line with other statutory payments for family leave, ie a flat weekly rate, currently £148.68 – (the proposed rate for 2020-21is £151.20) or 90% of average weekly earnings, if this is lower. Employers can recover 92% paid, or where eligible for Small Employers Relief, they can reclaim 100% plus an element for compensation which is currently 3%.
Records should be kept for three years after the end of the tax year.
Detailed guidance
At this time, with only three months to go live, it wouldn’t be unreasonable to expect to be reading detailed employer guidance along with regulations, but due to the General Election and other political shenanigans this has yet to be published.
It is said ‘the devil is in the detail’ and detailed guidance from HMRC is expected to include information that you would expect of a statutory payment. In the meantime, your payroll software will have been updated to take account of the new RTI data items that have been created in anticipation of this latest important payment.
Acas guidance will also be updated, but currently speaks on the subject of bereavement as a time when “employers should be compassionate towards a person’s individual situation and remember that everyone deals with bereavement differently…”
