All full-time workers in the UK are entitled to a statutory minimum of 28 days (5.6 weeks) paid annual leave each year. This leave entitlement usually includes the eight statutory annual bank holidays. Part-time workers are entitled to annual leave on a pro-rata basis.

Many employers will operate a discretionary policy to enable staff to take time off – perhaps simply to help arrange or attend a funeral -when a family member dies. However, this is not legally enforceable and depends very much on the good will of the employer – they don’t have to do it. When they do, it is likely to be on a case by case basis, so the amount of time granted, whether it is paid in any way and indeed whether time will be given at all could be decided differently for different people.

Time off for death of a dependant

There is currently a statutory right for employees to take time off for dependants which specifically covers the situation where a dependant dies (section 57A of the Employment Rights Act 1996). There is no qualifying period of service for this right, meaning it applies to an employee from day one of employment. However, it is quite restrictive in its application. In particular:

• it only applies to an official employee (those working under a contract of employment) not to the wider category of workers or to agency workers, the police or members of the Armed Forces,
• it only grants the entitlement to a “reasonable amount” of time off during working hours,
• the time is unpaid, it does not require the employer to pay for the time taken,
• it only applies on the death of a “dependant”.

What is considered “reasonable” will depend on the individual circumstances, but in practice the length of time off will be agreed mutually between the employer and their employee, but there is currently no universal guideline on this.

Many employers have compassionate leave policies, but these are generally informal with companies tending to react to employees’ circumstances on an ad hoc basis.

The right is to enable staff to carry out duties which are necessary in consequence of the death of a dependant. A dependant is defined as:

• the employee’s parent, spouse, civil partner or child,
• a person who lives in the same house as the employee (but is not a lodger, tenant or employee).

As can be seen, this statutory right is limited in its application. It does not create a general entitlement to compassionate leave on the death of a family member, instead relying on the goodwill of an employer. Hence the actual time off an employee will receive, even if they are eligible, will be days rather than weeks and will often be unpaid, even in extreme circumstances.

Changes to bereavement leave laws from 2020

Although the current legislation surrounding employee entitlement to bereavement leave is limited, with much being left to the discretion of the employer, upcoming changes to the law are set to change this. This planned amendment will directly relate to parents dealing with a child under the age of eighteen.

Following the 2017 election, the government previously pledged to introduce a new entitlement for parental bereavement leave and pay and, in September 2018, the Parental Bereavement (Leave and Pay) Act 2018 passed into law. However, further regulations will now need to be made, setting out the finer details of the new right. The government made a manifesto commitment to introduce an entitlement for parental bereavement leave and the new law is expected to come into force in 2020.

It is expected that the new law will give employed parents two weeks’ paid leave if they lose a child under eighteen or suffer a stillbirth from 24 weeks of pregnancy. As with existing bereavement laws, parents will be entitled to this paid leave irrespective of their length of service with their employer.

How will bereavement leave be paid for?

Currently, an employee taking bereavement leave following the death of a dependant is not entitled to full pay for the duration of their time off and will be paid at their employer’s discretion. The new law will make it a legal requirement for all parents who have lost a child to receive a minimum of two weeks paid leave.

It is expected that the cost of this pay will be partially Government subsidised, depending on the employer and business size. Small employers will be able to recover all statutory parental bereavement pay from the government while larger employers will be able to reclaim almost all of it when the new right comes into force.