As an employer, it’s inevitable you’ll at some point be faced with an employee who has suffered the loss of a loved one. Tina Chander provides some advice.

WHEN an employee loses a loved one, it can be a challenge to balance protecting an employee’s wellbeing and maintaining a business’ operations. But when it comes to employee bereavement, what legal responsibilities does an employer have towards its team?

Bereavement law
Outside of statutory parental bereavement leave, matters surrounding bereavement or compassionate leave aren’t defined in UK employment law. However, the Employment Rights Act 1996 does give employees the right to take ‘a reasonable amount of time’ off work should they need to deal with emergencies or issues relating to ‘dependents’. This could be to care for a spouse, civil partner, child, or parent in ill-heath, or to organise or attend their funeral.

Unless stipulated in an employment contract, or a standalone absence or bereavement policy, there’s no legally enforceable ‘reasonable’ period that should be granted for these reasons, although it’s often considered to be between two-to-five days.

In the absence of formal guidance, the employer should exercise their discretion on a case-by-case basis, taking into consideration the employee’s relationship to the deceased, and the circumstances surrounding their death.

Those requiring additional time off work, over and above what was agreed initially, should request it with the utmost urgency. Often, this additional period of leave will be unpaid.

However, under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers should remain conscious of their legal responsibility to protect an employee’s wellbeing and mental health when considering their stance.

For example, pursuing a return to work where depression or anxiety resulting from bereavement is a consideration, would be ill-advised and should only be done on careful assessment of risk to the individual and the business.

If an additional absence is because an employee is struggling with their mental health following a bereavement, they should provide a fit note as they could be entitled to take the time off as paid sickness under their contractual terms.

Bereaved employees must not be marginalised or treated unfairly during their absence. They should be given equal opportunity to apply for promotion or undertake training, and they cannot be made redundant purely because of their absence. Should an employee believe they were treated unfairly following a bereavement, they could have grounds to bring a tribunal claim.

Religious beliefs and customs must also be accommodated when considering the length of compassionate leave following a bereavement. For example, under the Equality Act 2010, denying an employee sufficient time to perform mourning rituals that form a part of their faith may be considered indirect discrimination.

Parental bereavement
Parents or primary caregivers who have suffered the loss of a child under the age of 18 are treated slightly differently under UK law, with the Parental Bereavement (Leave and Pay) Act entitling those affected to two weeks of parental bereavement leave and/or statutory parental bereavement pay.

To qualify for statutory bereavement pay an employee must have completed at least 26 weeks service before their bereavement.

Pay is set at £156.66 a week, or 90% of their average weekly earnings (whichever is lowest). Those who’ve not reached this service threshold will only be entitled to two weeks of unpaid parental bereavement leave.

All the employee’s right to pay rises and the accrual of annual leave is protected throughout this time.

Bereavement policies
Many employers have a specific bereavement policy detailing their approach. Such policies often cover:

• How the time off work will be treated
• How much time off an employee can expect to take
• What the employee will be paid
• What the mechanisms are for reporting a bereavement
• The employer’s position if the deceased was not defined as a ‘dependant’ under the Employment Act
• How the return to work will be handled

Return to work
Bereavement can lead to substantial changes in an individual’s personal circumstances, often impacting matters surrounding childcare or finances. Those affected may need to alter their working patterns or tasks to better manage the practical issues related to their loss.

For example, this could mean implementing part-time hours, flexible or hybrid working, or a staggered return to work.

It’s wise to meet regularly with the affected party once they have returned so that their progress can be monitored, and adjustments made to their working life if necessary. The key to managing an employee’s bereavement effectively is empathy. This is often as simple as allowing someone to leave early if they become upset or making more time or space for them to be open about their feelings.

Death is something that affects us all, so treating others the way you would hope to be treated in their position, is the most practical way to show your support. Creating a nurturing space in which the bereaved can work without judgement will help ensure they remain engaged, productive and integrated.
www.wrighthassall.co.uk
Tina Chander is head of employment law at Wright Hassall