As an employer it is important that you provide both a compassionate and legally compliant approach to employee absence from work following the death of a loved one so as to minimise the impact on the bereaved individual and your business.
Yet the law relating to bereavement leave is by no means clearly defined.
What is bereavement leave?
Bereavement leave, or compassionate leave as it is commonly known, is the period of time that an employee is allowed to take off work following the death of a member of their immediate family or household.
When does bereavement leave apply?
By law, an employee has limited statutory rights when it comes to bereavement leave, although establishing exactly when these limited rights arise can still be extremely difficult for employers.
By virtue of section 57A(1) of the Employment Rights Act 1996, an employee has the right to take ‘a reasonable amount of time’ off work for dependants, including to care for a dependant who falls ill, or in consequence of the death of a dependant.
Under section 57A(3) a dependant is defined as a spouse or civil partner; a child; a parent; or a person living in the same household, such as a live-in partner.
The 1996 Act specifically excludes from the definition of a dependant any ‘tenant, lodger, boarder or employee’ living in the same household.
It must follow, however, that on the death of a live-in employee charged with the care of children, the statutory right to take time off work may still arise under section 57A(1)(d) by virtue of ‘the unexpected disruption or termination of arrangements for the care of a dependant’. This could also extend to circumstances where the death of a family member, friend or other person not living in the same household but charged with the care of a dependant necessitates time off work. Here, section 57A(5) extends the definition of a dependant to ‘any person who reasonably relies on the employee to make arrangements for the provision of care’.
Confusion can also arise relating to the statutory notification requirement. By virtue of section 57A(2), the statutory right to bereavement leave does not arise unless an employee informs their employer of the reason for their absence ‘as soon as reasonably practicable’ and for how long they expect to be absent. This, however, is qualified (without further statutory definition) by circumstances where an employee is unable to comply with the requirement to inform you until after they have returned to work.
How much time off work is permissible?
Determining the length of time that an employee can take off work is as equally problematic. Whilst section 57A(1) of the 1996 Act prescribes that an employee may take a ‘reasonable amount of time’ off work, what constitutes ‘reasonable’ following the death of a dependant, or otherwise, is again not statutorily defined.
Much may depend on the circumstances, including the employee’s relationship with the deceased and the nature of the death, for example if the death is sudden or traumatic. In many instances between 2-5 days bereavement leave would be considered reasonable, although as an employer it is often in your best interests to ensure that the employee has sufficient time off to grieve.
It is good practice to have a workplace policy that clearly outlines employee entitlement to bereavement leave. However, in the absence of any documented policy, it is up to you as the employer to use your discretion on a case-by-case basis, being as reasonable and consistent as possible in line with previous custom and practice.
By way of example, you should try to accommodate the religious beliefs and customs of the employee in question. Under the Equality Act 2010 refusing to allow an employee sufficient time for mourning rituals that form a part of their faith, in circumstances where you are unable to objectively justify that decision for business reasons, could be considered indirect religious discrimination.
Is an employee entitled to paid bereavement leave?
As an employer, you are not statutorily obliged under the 1996 Act to pay an employee for time taken off work for bereavement. That said, it is good practice for employee relations and morale to make financial provision for short periods of bereavement leave.
In circumstances where an employee needs to take an extended period of time away from work, to deal with their grief or perhaps support a bereaved child, they may opt to use any entitlement to paid annual leave. Alternatively, you may wish to offer flexible or part-time working.
The cost of mishandling bereavement leave
In circumstances where you refuse to permit an employee to take time off as required by section 57A of the 1996 Act, including any request for bereavement leave, you may find your business the subject of an employment tribunal claim.
If an employment tribunal finds the employee complaint well-founded, you may be ordered to pay financial compensation.
Additionally, a refusal to provide any or sufficient bereavement leave is likely to have a negative impact on the employee’s performance at work. For some, the physical and emotional impact of grief may result in sickness-related absence for which the employee benefits from much greater statutory protection, for example, the right to statutory sick pay.
Where the condition is long-term (for example, with anxiety, depression or post-traumatic stress disorder) and symptoms affect their ability to undertake day-to-day activities, this may amount to a disability for the purposes of the Equality Act 2010.
Here the employee would have the right to reasonable adjustments to their working environment to remove or minimise the impact of their impairment in the workplace, for example, a phased return following long-term sick leave, or revised hours and responsibilities on their return.
Effectively managing bereavement in the workplace
As an employer, bereavement in the workplace can be difficult to quantify and manage. Some employees may feel able to return to work quite quickly, whilst others will need more time. Furthermore, on returning to work, an employee’s ability to perform some or all of their work-related tasks may be seriously hampered.
By implementing a clear policy on managing bereavement in the workplace, this can have a positive effect on the wellbeing of your employees, as well as your long-term working relationship.
Providing a compassionate, flexible and supportive approach to requests for bereavement leave will help to minimise stress for the individual in question, reduce sickness absence and ultimately help to retain a valuable member of your workforce.
New bereavement rights for parents
Special provisions will apply to bereaved parents from 6th April 2020.
Under the Parental Bereavement Leave and Pay Regulations, existing provisions under the Employment Rights Act 1996 have been extended for parents who have suffered the loss of a child, entitling them to two weeks’ statutory paid leave from work from 6th April 2020.
To be eligible for paid parental bereavement leave, parents and primary carers must have a minimum of 26 weeks’ continuous employment prior to the child’s death.
Legal advice for managing bereavement leave
The law relating to bereavement leave, including when and for what length of time an employee is entitled to take leave, is not clearly defined. As an employer, any decision to refuse a request for bereavement leave is open to challenge.
It is therefore important to seek expert legal advice from an employment law specialist if you are contemplating creating a workplace policy for bereavement leave, or you are currently faced with managing a bereavement situation in the workplace.
A lawyer specialising in bereavement leave can help you to implement a compassionate and legally compliant policy to help minimise the impact of bereavement for both your employees and your business.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.