Bereavement is inevitable, and as an employer, you will, at some point, be faced with an employee who has lost a loved one.
At such times, it can be challenging to find the right balance between protecting an employee’s mental well-being and sustaining business operations. But what legal responsibilities do employers have in these instances?
Bereavement Law
Outside of statutory parental bereavement leave, matters surrounding bereavement or compassionate leave are not defined within UK Employment Law. However, the Employment Rights Act 1996 does state that employees have the right to take ‘a reasonable amount of time’ off work to deal with emergencies relating to ‘dependents’, such as a spouse, civil partner, child, parent, or any person who is reliant upon their physical care.
Unless specified within a contract of employment or standalone policy, the law does not specify what ‘reasonable’ is, although it’s commonly considered to be around two to five days. However, this should be reviewed on a case-by-case basis, taking into consideration the nature of the employee’s relationship to the deceased and the circumstances surrounding their passing.
Employees wanting time off over and above that agreed should request it as soon as practicable. Often, extended bereavement leave will be unpaid and granted at the employer’s discretion.
However, employers should be mindful of their legal responsibility to protect an employee’s wellbeing under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.
This means not pushing the return to work where depression or anxiety is a factor. But if an extended absence is due to mental health issues resulting from the bereavement, a fit note should be provided as the employee could be entitled to paid sickness leave.
Employers must ensure that employees on bereavement leave are not treated unfairly because of their absence from work. They must have equal opportunity to apply for promotion or undertake training, and cannot be made redundant because they have been physically absent. Should an employee believe they were treated unfairly as a result of their absence, they may have grounds for a tribunal claim.
Religious beliefs and customs must also be accommodated when considering leave length. For example, under the Equality Act 2010, refusing an employee sufficient time to perform religious mourning rituals could be considered indirect discrimination.
Parental Bereavement
Parents or primary carers who have suffered the loss of a child under the age of 18 are treated differently under UK law, with the Parental Bereavement (Leave and Pay) Act stating that those affected are entitled to two weeks of parental bereavement leave and statutory parental bereavement pay.
To qualify for statutory bereavement pay an employee must have been employed for at least 26 weeks before their bereavement, which is set at either £156.66 a week, or 90% of their average weekly earnings (whichever is lowest). Those who have not reached this service threshold are entitled to two weeks of unpaid parental bereavement leave.
The law also safeguards the rights of employees who suffer a stillbirth after 24 weeks of pregnancy, by granting them 52 weeks of maternity leave and pay.
All the employee’s standard employment rights are protected throughout this time, including their rights to pay rises and accrue annual leave.
Bereavement Policies
Some employers will have a specific bereavement policy as this can remove the necessity for negotiation at what is a challenging time. Such policies should clarify:
- How the time off will be treated
- How much time off can be reasonably expected
- What the employee will be paid during bereavement leave
- Mechanisms for reporting a bereavement
- The employer’s position if the deceased is not defined as a ‘dependant’ under the Employment Act
- How the return to work will be handled
Return to work
Be mindful that bereavement can lead to substantial changes in personal circumstances, such as altering childcare needs or increasing financial burden. Employees may need to alter their working patterns or responsibilities in order to manage their new situation.
Wherever possible, an agile approach is best. This could mean proposing part-time hours, flexible or hybrid working or a staggered return to duties.
Undertake regular one-to-ones upon the return to work so progress can be monitored. This will ensure that any issues are bought to the fore as and when they occur. Bereavement should also be taken into consideration during performance reviews so as to not unjustly impact an individual’s employment record.
The key to managing an employee’s bereavement effectively is empathy. Treating others the way you would hope to be treated if roles were reversed, is the most practical way of showing your support. Creating a safe and nurturing space in which the bereaved can work will help ensure they remain engaged, loyal and integrated within the team.
- Tina Chander is the head of employment law at Midlands law firm, Wright Hassall, and deals with contentious and non-contentious employment law issues.