Bereavement Leave: Should You Work While You’re Grieving?

Death, usually accompanied with grief, is not set in stone; death can present itself unexpectedly and grief is never the same for two people. Nevertheless, the pair can have dire effects on one’s life, allowing them to fail in continuing with their daily routine.

It is therefore surprising to note that there are no official rules or regulations in place for when you are in the unfortunate position of taking time off due to a loved one’s death. Advisory, Conciliation and Arbitration Service (ACAS) provides information on what action employers should take in regards to bereavement leave. They stated out the laws in places which apply:

• Section 57(A) of the Employment Rights Act 1996 gives a ‘day one’ right for an employee to have ‘reasonable’ (undefined) time off work to deal with an emergency, such as a bereavement involving a dependant. This includes: a spouse, partner, child, grandchild, parent, or someone who is dependent on the employee.
• An employer does not have to pay an employee for this time away from work.
• The Equality Act 2010 protects employees with protected characteristics from unlawful discrimination. When giving out bereavement leave. employers must make sure that they do not treat some employees less favourably than others.
• Employees experiencing mental health difficulties such as anxiety, depression or post-traumatic stress disorder, which can be a consequence of bereavement, may be considered disabled in some cases; employers to make reasonable adjustments for these employees under the Equality Act 2010.
• Female employees who experience a stillbirth after 24 weeks are entitled to up to 52 weeks statutory maternity leave and/or pay. The death of a child born alive also does not affect the mother’s entitlement to maternity leave.

In general, ACAS also states how an employee may be entitled to special or compassionate leave under their contract of employment as the employer had a duty to care for employees and should consider the effect of bereavement.

The overall lack of guidance and legislation regarding bereavement and work has led to cases of people feeling stressed and under pressure to return to work when they are not ready, or capable to. It also allows employers to threaten to terminate their contractual agreement with their employee; some employers go above and beyond to see to their employee’s needs, however, the lack of law in place makes it easy for them not to.

Therefore, this months’ Lawyer Monthly asks experts about if there should be tighter regulations stated by the government to do with bereavement leave and how realistic these rules would be, if they were implemented.

 

 

Paul Kelly, Solicitor at Blacks Solicitors

In September 2016, Conservative MP for Colchester, Will Quince, introduced the Parental Bereavement Leave (Statutory Entitlement) Bill 2016/2017 to the House of Commons for its first reading.

Mr Quince is seeking to amend the Employment Rights Act 1996 to give parents who have suffered the death of a child a statutory right to take two weeks’ paid leave. Sadly, Mr Quince and his wife lost their own son in childbirth. Now he wants to see parents who suffer a similar loss given sufficient time to grieve and make the necessary arrangements to say goodbye.

At present, there is no statutory right for an employee to take paid or unpaid time off work following bereavement. There is an existing statutory right to take a very short period of unpaid leave to deal with emergencies concerning dependents. But that right is inadequate to deal with bereavement as it is a right only to take such reasonable time off as is necessary to put measures in place – such as organising a funeral. Furthermore, it is unlikely that the leave would last for more than a few days. So, in the case of bereavement, it would not allow sufficient time to grieve.

Whilst a further statutory right to paid time off is unlikely to be popular with employers, many already offer do some form of bereavement or compassionate leave, recognising the benefit such leave has on an employee’s wellbeing (and in turn, productivity). However, given that there is no statutory obligation on employers to allow such leave, the length of leave and whether or not it is paid is very much in their discretion.

Mr Quince’s Bill is a Private Member’s Bill brought under the Ten Minute Rule. A Private Member’s Bill generally has little prospect of becoming law unless it attracts Government support and can find space within a packed legislative timetable. However, some Private Member’s Bills do find their way onto the statute books. Mr Quince’s Bill was listed for a second reading on 28 October 2016 and again on 18 November, but was not debated due to lack of time.  At present, there is no indication when it will receive a second reading, and with Brexit dominating the news at the moment, we could be waiting some time.

In the age of family-friendly legislation and a more flexible style of working, spectators are watching with interest the progress of this Bill through the House of Commons and the Lords.

 

 

Emma O’Leary, Employment Law Consultant for The ELAS Group

The Employment Rights Act 1996 does provide for an employee to have ‘reasonable’ (unpaid) time off to deal with an emergency, such as a bereavement involving a dependent.  Of course with much of employment law, what is ‘reasonable’ depends on the circumstances and, given that we all deal with grief in varying ways, there can be no definitive guide as to what is reasonable.

For that reason, it would be difficult to introduce legislation to deal with bereavement specifically other than perhaps to compel employers to allow a set period of paid or unpaid time off to deal with the situation.  But then other issues arise, for example, would this be limited to relatives only?  What about very close friends who might impact more on an employee than an estranged parent?  Would there be statutory minimum pay as with statutory sick (SSP) or maternity pay (SMP) and could the employer reclaim any portion of this, as with SMP?

In the absence of any definition as to reasonable time off to deal with bereavement or forthcoming legislation, grieving employees have to rely on the goodwill and policy of their employer.  Many employers will have a policy which might allow for a period of leave e.g. 3 paid days.  If the deceased was a dependent then not only will the employee have to deal with their grief, they will probably have to organise the funeral so would need more time off.  How this is handled is at the employers’ discretion to some extent – although always bearing in mind the statutory right to time off for emergencies.    Some employees may simply request holidays rather than unpaid leave.  Some may seek medical assistance or a Statement of Fitness for Work declaring them unfit for a period due to bereavement or associated mental health conditions e.g. anxiety, depression or PTSD.  Employers must then also consider the implications of the Equality Act and avoid treating the employee less favourably due to those conditions, in the event that they amount to a disability.

Above all, the employer should be supportive. As we said each person deals with loss differently and whilst some may feel ready to return to work quickly, others may really struggle and their absence could become long term.  There should also be some consistency to ensure employees are treated fairly and equally, which is why a bereavement policy is advisable.  Lack of support and reasonable policy is more likely to result in the employee taking long term sickness absence.

 

 

Will Clayton, Partner for Knights Professional Services

The argument for and against bereavement leave is an emotive one. However, at least in my own professional experience bereavement leave has never proved to be a contentious issue – I have not had to deal with any disputes between employers or employees surrounding bereavement leave during my twenty years’ experience in employment law.

Many employers have specific policies which outline the criteria for taking time off in these circumstances that work perfectly well and so I don’t see any pressing need for the government to implement a statutory bereavement leave scheme.

Bereavement is of course incredibly personal – there is no one size fits all approach that will work for everybody.

In addition to the statutory entitlements, employees can of course seek to take annual leave or, if unable to work due to the distress of a bereavement, sick leave. In practice, most employers exercise their discretion reasonably to grant additional compassionate or bereavement leave to workers when it is needed.

Introducing formal bereavement leave could cause more issues than it would resolve and only create a two tier system that leads to unfairness. Where do you draw the line between who should be entitled to a new form of statutory bereavement leave and who will not?  Will this only lead to people who are not within the definition being denied the benefit of an employer’s discretion that they may otherwise have if the legislation is not put in place?

Regardless of whether new laws are introduced or not, employers need to carefully consider issues around the interplay between bereavement, the need to take time off work and religious observance.  This is an area where employers could unwittingly discriminate against employees of differing religions who suffer bereavements.

For example, I understand that within the Jewish religion, burials should takes place as soon as possible following death, and can be followed by a formal period seven day period of mourning. Employers need to have open discussions with employees of different religions about such issues, and stay on the correct side of our discrimination laws.

 

Simon Allison, Partner & Head of Employment Law at Blackadders

An online twitter poll last week asked employers whether the UK should create a new specific form of statutory bereavement leave or instead leave such matters to an employer’s own discretion (as is currently the case). The results were surprising.

As perhaps expected, many employers were of the view that the current statutory right to unpaid emergency leave was sufficient. Generally employers were concerned as to how this proposed new leave would operate in practice.  Aside from the obvious concerns as to who would meet the cost of such an entitlement, many employers noted that the required length of absence would vary from employee to employee.

Interest in this poll came from as far afield as Australia where there is already scheme of statutory compassionate leave of two days per household for death, injury or serious illness to immediate family or a member of the household.

Ultimately however 56% of employers were of the view that the UK should create a formal entitlement for statutory bereavement leave.

Perhaps employers believe that such a scheme would remove the sometimes difficult decisions which require to be made regarding grieving employees.

Or maybe employers are keen to create certainty as to employees’ entitlements in these circumstances.

In either case, such a scheme would require very careful thought from the draftsmen, particularly as to the extent to which family members’ deaths would trigger this entitlement.

 

 

Claire Knowles, Employment Lawyer and Partner at Acuity Legal.

If bereavement leave was to be introduced, a number of factors need to be considered. I would propose a minimal entitlement for all, whilst larger organisations should be encouraged to be more flexible and accommodating where they can.

This will be difficult to balance as some employees may have high expectations when it comes to how much leave they might be entitled to, so all policies need to be made very clear to managers and employees alike.

Smaller businesses need to be able to function properly and the impact of someone taking lengthy time off can cause considerable disruption, particularly if it’s not clear when they will be returning to work.

There should therefore be a minimum statutory bereavement leave policy that all companies have to comply with, and in my opinion that should be at least the same as statutory sick pay (if not enhanced sick pay if this is offered in an organisation).

Employers who can afford to pay for bereavement leave should do so, particularly those that already provide enhanced sick leave pay for staff. Consistency is very important when it comes to leave policies, but as a minimum there should be some form of compensation available.

Everyone’s circumstances are different so a set policy that applies to all staff can be quite restrictive. While official legislation on this matter is important, it will always require an element of humanity due to the sensitive and individual nature of bereavement.

I’ve managed a few employment law cases relating to bereavement leave.  In one case where a female employee of a large company lost her husband, her manager didn’t know how to deal with the situation and was unable to advise her on how much leave and pay she was entitled to. In the end, she had to resort to getting a sick note from her doctor and the whole process was incredibly stressful for her.

The issue of line managers not being properly trained on leave policies relating to bereavement is quite common. Making the policy really clear at all levels of the business is therefore essential.