At some point during their working lives, most people will experience the death of someone close to them. The law recognises that this can be a distressing experience, and offers eligible employees with statutory rights to time off of work in certain circumstances. To assist employers in understanding the rights, and to provide advice on how to help manage bereavement in the workplace, Acas published new guidance on the subject last week.

Rights to time off work during bereavement

Anyone classed as an employee is given a statutory right to reasonable time off for dependants. This right extends to the situation where a dependant of the employee dies. For these purposes, a dependant could include the employee’s spouse, partner or civil partner, parent or child. A dependant, in some circumstances, can also include those unrelated to the employee and can extend to anyone who relies on the employee to make care arrangements or for help in the event of accident, illness or injury.

With the exception of when an employee’s child under the age of 18 dies, or a child who is stillborn after 24 weeks of pregnancy, the right to time off as a consequence of the death of a dependant only extends to time off to deal with logistical matters which arise as a result of the death (i.e. to attend or arrange a funeral). It is not a statutory right to compassionate leave, although the new Acas guidance sets out that an employer may want to consider allowing the employee to take compassionate leave, sick leave or annual leave in the circumstances.

What about children?

In the case of an employee’s child under the age of 18, or a child who is stillborn after 24 weeks of pregnancy, the employee will be entitled to 2 weeks off of work (and this is known as Parental Bereavement Leave). During this time, an employee may be entitled to receive Statutory Parental Bereavement Pay subject to certain criteria being met.

In cases where a child is stillborn after the first 24 weeks of pregnancy:-

• the birth mother can take up to 52 weeks of statutory Maternity Leave
• the birth father, partner of the birth mother or the adopter, can get up to two weeks of Paternity Leave

In these circumstances, both will then be entitled to take 2 weeks of Parental Bereavement Leave after the period of Maternity or Paternity leave ends.

It is also worth noting that, where a miscarriage happens in the first 24 weeks of pregnancy, any sickness absence that the birth mother experiences as a result will likely be considered to be related to the pregnancy. Where this does occur, any period of sickness absence related to the pregnancy should be recorded separately from other instances of sickness absence for the purposes of any review points. This is because the employee would have the protected characteristic of ‘pregnancy and maternity’. Employers should be careful not to put the employee at any disadvantage or treat them less favourably in the circumstances as to avoid a potential discrimination claim.

Pay during bereavement

Unless the employee is entitled to take statutory Maternity, Paternity or Parental Bereavement Leave as set out above, there is no statutory right to paid time off for bereavement.

However, some employers choose to offer paid time off during a period of bereavement (and this may be governed by an organisation’s written policy, or the employment contract).

Acas guidance

Although the Acas guidance introduces nothing new in terms of legal rights and obligations, the guidance is welcome as a useful reference for employers faced with what can often be a difficult situation.

Employers are encouraged under the guidance to remain sensitive to needs, consider physical and emotional wellbeing and recognise that grief will affect individuals differently. Emphasis is placed on sensitive, proactive communications and actions to assist employees, noting that productivity may be improved where the employee feels properly supported. The guidance also includes a number of case studies to demonstrate different scenarios an employer may be faced with, and provides advice on how best to deal with these.

Importantly, the guidance flags that in some circumstances, a mental health condition suffered by an employee may qualify as a ‘disability’ under equality legislation and an employer may be under a duty to make ‘reasonable adjustments’ in the circumstances. This can be a particular consideration where, for example, a bereaving employee already has an underlying mental health condition which the employer is aware of. Where an employer is concerned in this respect, legal advice should be sought as to what is required of them in the circumstances.

As well as dealing with bereaved employees, the guidance also sets out useful advice on dealing with the death of a staff member, including the recommended steps to take should the situation arise.

A recommendation is also included for employers to have a workplace bereavement policy in place covering entitlement to time off and pay should the situation arise. Such a policy can assist managers faced with a bereaved employee to know how they should respond and support the employee after the death, assisting the employer to apply a fair and consistent approach across the business.

The new Acas guidance on ‘time off work for bereavement’ can be accessed in full here.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.