For many employees, trying to concentrate at work shortly after a bereavement can be extremely difficult. In addition to grief, they may have to deal with the coroner, planning the funeral or supporting loved ones. Employers should not discriminate against employees when deciding on time off. For example, not allowing an employee to attend a religious ceremony after a death could be religion or belief discrimination. Employers and employees should agree together how an employee takes time off for both religious and non-religious funerals.
Due the complicated and differing leave limits and rights, it would be useful if businesses offered their own specific policy or contractual right to bereavement and compassionate leave, as this is likely to be less complicated than the current legal position, as explained below:
Current Legal Position
The current legal position has grown organically over the past 30 years and now includes a patchwork of rights for the employee. These rights therefore depend on whether your worker would qualify as an employee in the first place, which is an issue in itself.
Anyone with the legal status of employee has the right to unpaid time off if a “dependent” dies or their child is still born or dies under the age of 18.Dependants include a spouse, a partner or someone who relies on the employee for help, whether they live with them or not. It would not include a person who has no biological or legal connection to the employee, but is non the less important to the employee, such as a close friend. There is no specific amount of time that can be taken off, instead the employee may take a ‘reasonable’ amount of time off for necessary actions arising from the death of a dependant, such as registering the death. This type of leave is to cover emergencies and is usually for no more than a few days. Employees have this right from the first day of their employment.
The right to pay would be a personal benefit usually found in the employee`s contract.
Loss of a child or baby
Parental bereavement leave gives parents, including adopters and foster parents, the right to take one or two weeks’ leave following the death of a child aged under 18 or a still birth after 24 weeks’ pregnancy. Employees have this right from the first day of employment. if they were employed when their child died and they’d worked for their employer for at least 26 weeks, on the Saturday before the child’s death, and they earn on average at least £125 per week, before tax
In addition, Employees must ask for statutory parental bereavement pay within 28 days of taking statutory parental bereavement leave, starting from the first day of the week they’re claiming the payment for.
If an employee or worker earns on average less than £125 per week before tax, they are not entitled to statutory parental bereavement pay.
Recent changes have included that an employee is entitled to take one week of neonatal care leave in respect of each “qualifying period” that a child has spent in neonatal care, provided that all eligibility and notice requirements are met. It must be taken in blocks of whole numbers of weeks.
The first qualifying period is a period of a week starting on the day after neonatal care starts (in other words, days two to eight of neonatal care, where day one is the day neonatal care starts, which in many cases will be the date of birth). The result is that an employee is not entitled to take neonatal care until day nine.
There is a maximum of 12 weeks of neonatal care leave which must be taken within 68 weeks of the child’s birth. In adoption cases, leave will be after the date of placement (or in overseas adoption cases, the date the child enters Great Britain).
The leave is split into 2 tiers which adds complexity to the scheme and there are different notice requirements for each tier.
The definition of parents includes adopting parents and intending parents in the case of surrogacy. For parents who meet the eligibility criteria, the leave will be paid and the rate of pay and criteria are the same as for statutory parental bereavement leave.
An employee who has a still birth after 24 weeks of pregnancy or whose baby dies after birth, remains entitled to 52 weeks’ maternity leave and, if eligible, maternity pay. The entitlement to paternity leave also applies.
At the moment, there is no legal right to get time off work after the loss of a pregnancy during the first 24 weeks, other than sickness absence.
Use of annual leave
Bereaved employees may request to take annual leave if they do not have a legal entitlement to take time off or they have already exhausted that entitlement. The purpose of annual leave is rest and recuperation. As a matter of good practice, employers may wish to discuss alternatives with the employee, so that they can save their annual leave entitlement. This could be paid or unpaid compassionate leave.
Changes on the horizon
A new right to bereavement leave was included in the Employment Rights Bill 2024, proposing to give all employees the right to one week’s unpaid leave following the death of a loved one. The Government is expected to consult on the detail this year, with the new right being introduced in 2026, at the earliest.
Some employers already have a policy which covers miscarriage and pregnancy loss and that extends the right to time off to employees who experience pregnancy loss before 24 weeks. In January 2025, a select committee of the House of Commons published a report recommending that this should become law by adding it to the Employment Rights Bill. The Government responded by accepting the principle of bereavement leave for pregnancy loss. It said it will discuss this further as the Bill passes through Parliament. At the time of writing this has not been added to the Bill.
Should we offer bereavement leave?
Given the complication of the present rules and the lack of detail still to be seen in the Employment Rights Bill, on compassionate and for simplicity grounds, employers may wish to offer bereavement leave to employees who are not legally entitled to it or to offer a more generous provision than the legal minimum. To do so encourages employee loyalty and improves morale. A further consideration is that a bereaved employee may struggle to work effectively and it may be better for both the individual and the business if they are given time off work.
How we can help
We can prepare a policy that sets out your organisation’s approach to bereavement leave. This allows everyone to know where they stand and ensures that line managers act with greater consistency across the business.
Although you may wish to offer bereavement leave beyond the legal entitlement, allowing employees time off, particularly on short notice, can be disruptive to a business. We can advise you on responding to specific requests, as these could result in claims for religious or pregnancy-related discrimination. We can also advise you on the detail of statutory rights to ensure you stay on the right side of the law, such as the employee’s rights during certain types of leave and on returning to work.
For further information, please contact our Employment Team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email law@warekay.co.uk.
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