Compassionate leave for bereavement: what the law says

According to the Employment Rights Act 1996, employees are entitled to emergency time off. And this includes compassionate leave for bereavement.

In the case of bereavement, emergency time off would be a ‘reasonable’ period of unpaid time off in order to take essential action that arises from the death of a dependant – a spouse, child, parent or individual who lives in the same household as the employee and is under their care.

What counts as reasonable time off?

Legally, this refers to the time required to address the practical matters that arise from the death, making funeral arrangements, for example. Time to grieve, however, is not accounted for.

Is offering compassionate leave a legal requirement?

For the time being, employers are not legally required to offer compassionate leave (also known as bereavement leave) to employees. Only emergency time off for dependants need be granted.

Compassionate leave is entirely down to an employer’s discretion

As a result, it falls to the employer’s discretion to determine whether any additional leave, above and beyond emergency time off, will be offered to a bereaved employee and whether this will be paid.

Whether an employee is entitled to compassionate leave for the death of someone not legally considered a dependant is a further factor for employers to consider.

A compassionate leave policy is invaluable

With research indicating that one in ten employees will be affected by a bereavement at any one time, it’s inevitable that, at some point, one of your own employees will lose a loved one.

It’s important to be prepared, and to have defined your company’s approach to offering compassionate leave before an employee bereavement occurs. This is where a compassionate leave policy becomes invaluable. Without one, you risk making emotion-based judgments and treating your staff inconsistently, possibly to the extent of discrimination.

Further employment laws to be aware of

While there is currently no law around the provision of compassionate leave, it’s worth noting that several employment laws do become relevant in the situation of a bereaved employee.

The Equality Act

As employees are protected from discrimination on account of their religion or belief, employers should try to accommodate religious bereavement requirements where reasonable. If you refuse a request of absence to observe a religious custom or funeral rite, you must have objective and sound business reasoning for your decision. Without this, your refusal could be deemed as indirect religious discrimination under the Equality Act 2010.

It’s also important not to discriminate between married couples and those in civil partnerships as this could be considered discrimination. For example, if your compassionate leave policy allows for compassionate leave when someone’s husband or wife dies, the same allowance should be available to those who have lost their civil partner.

It’s worth remembering that the Equality Act also protects disability. Grief can often trigger symptoms of depression, which could amount to a disability. It’s important to be alert to this, and remember your responsibility under the Equality Act to make reasonable adjustments should your employee’s grief become disabling.

Maternity Benefits Act

In the situation where an employee’s baby is stillborn after 24 weeks, or if the baby passes away while the mother is still on maternity leave, the employee would still retain her full entitlement to maternity rights.

Changes to the law around compassionate leave

In September 2018, the Parental Bereavement (Leave and Pay) Act 2018 was passed.

The Act entitles bereaved parents of a child under 18 to:

• Two weeks leave, to be taken within 56 days of the death.
• Statutory bereavement pay, provided the employee has sufficient length or service and earnings.

Whilst the question about who will qualify as a ‘bereaved parent’ is still to be set out in the regulations, the Act recognises that it is not only the biological parents of a child who assume parental responsibility.

The law is expected to come into force in 2020. When it does, employers will need to review their employment policies to ensure they comply with the new law.

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