Statutory Parental Bereavement Leave (SPBL)

An employee (regardless of their length of service) is entitled to take two weeks of SPBL - if their child dies on or after 6 April 2020. The employee must be a bereaved parent for the purposes of SPBL, e.g. an adoptive parent, a parent who has a child via surrogacy or a parent’s partner. A child is a person under the age of 18 or a stillborn child after 24 weeks of pregnancy.

An employee is entitled to take SPBL for each child if more than one child has died.

How Can SPBL be Taken?

An employee must take their SPBL within the period of 56 weeks beginning with the date of the child’s death. An employee can take SPBL as either a single block of two weeks or as two separate blocks of one week. A week is any period of seven days.

Notification Requirements for SPBL

An employee can give verbal or written notification to their employer about:

1. The date of the child’s death.
2. The start date of any period of SPBL and
3. Their intention to take one or two weeks of SPBL.

An employee can also give a verbal or written notification to their employer about cancelling their SPBL.

When Must the Notice be Given?

The length of notice required for SPBL will vary depending on the time that an employee is starting their SPBL. But the employee must take their SPBL within the period of 56 weeks beginning with the date of the child’s death.

Notice for SPBL Starting Within the Period of 56 days

This section applies where SPBL starts within the period of 56 days beginning with the date of the child’s death.

An employee who is starting their SPBL must give notice to their employer - before the time that they are due to start work on the first day of their SPBL.  Where it is not reasonably practicable to do so – the employee must do so as soon as reasonably practicable. For example, if an employee is due to start work at 9 am on 4 May 2020 - they can give notice at 8.45 am on 4 May 2020 to start their SPBL on the same day.

If an employee gives notice to their employer to start their SPBL on the same day on which they gave the notice. But the employee is already at work on that day – the SPBL period will start on the next day.

An employee who is cancelling their SPBL must give notice to their employer – before the time that they are due to start work on the first day of their SPBL. For example, if the start date of SPBL is 4 May 2020. And the employee would have been due to start work at 9 am on 4 May 2020 - if they were not taking SPBL. The employee can cancel their SPBL at 8.45 am on 4 May 2020. 

An employee cannot cancel any week of SPBL which has already started.

Notice for SPBL Starting After the Period of 56 days

This section applies where SPBL starts after the period of 56 days beginning with the date of the child’s death.

An employee who is starting or cancelling their SPBL must give at least one week’s notice to their employer before the start of the SPBL period.

An employee cannot cancel any week of SPBL which has already started.

Terms and Conditions of Employment During SPBL

During the SPBL period, an employee has the statutory right to continue to benefit from all of their terms and conditions of employment with the exception of remuneration.

Right to Return to Work After SPBL

An employee who returns to work after SPBL is entitled to return to the job in which they were employed before they took SPBL. The employee’s seniority, pension and similar rights must be as they would have been if they had not taken SPBL. And the employee must not return to work on less favourable terms and conditions of employment due to taking SPBL.

Employment Protection Rights

An employee (regardless of their length of service) will be unfairly dismissed - if the reason for their dismissal (or their selection for redundancy) is - because they took SPBL, sought to take SPBL, made use of the benefits of SPBL or the employer believed that the employee was likely to take SPBL. An employee also has the right not to be subjected to any detriment by their employer due to one of the same reasons.

Source: The Parental Bereavement (Leave and Pay) Act 2018 and the Parental Bereavement Leave Regulations 2020.

The regulations about Statutory Parental Bereavement Pay are:

The Statutory Parental Bereavement Pay (General) Regulations 2020
The Statutory Parental Bereavement Pay (Administration) Regulations 2020
The Statutory Parental Bereavement Pay (Persons Abroad and Mariners) Regulations 2020

Code of Practice on Preventing Illegal Working

An updated Code of Practice on preventing illegal working came into force on 28 January 2019. The main change is that an employer may rely on the Home Office’s online service to prove that it properly checked a person’s right to work in the UK (see pages 18 and 19 of the updated Code of Practice).

Source: Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 (SI 2018/1340).

Correction

The first sentence in the article entitled “Written Statement of Employment” (dated 19 December 2018) should read –

“A written statement of employment (WSE) must be given to an employee or a worker NOT LATER THAN the start of their employment . . .”

Written Statement of Employment

(References to the ERA 1996 means the Employment Rights Act 1996.)

A written statement of employment (WSE) must be given to an employee or a worker before the start of their employment – if it started on or after 6 April 2020 – regardless of the length of their employment. And the following additional terms and conditions of employment must be included in the WSE.

• The days on which the employee or worker is required to work.

• Whether or not the working hours or days may be variable; and if they may be variable - how do they vary; or how that variation is to be determined.

• Paid leave (e.g. maternity or paternity leave).

• Benefits (e.g. vouchers or discounted meals).

• Any probationary period, including any conditions and its duration.

• Any training entitlement provided by the employer. Terms and conditions about the training may be provided in some other document which is reasonably accessible to the worker (amended section 2(2) of the ERA 1996). And those terms and conditions may be given in instalments - but not later than two months after the start of the employee's or worker’s employment – even where the employment ends before that date (amended section 2(4) of the ERA 1996). See Stefanko v Maritime Hotel Ltd (EAT/0024/18).

• Any part of that training entitlement which the employer requires the worker to complete.

• Any other training which the employer requires the worker to complete where the employer will not pay the cost of the training (section 1(4)(n) of the ERA 1996).

Where applicable, the WSE must indicate that a term or condition does not exist, e.g. “The employer will pay the cost of any training that you are required to complete” in response to section 1(4)(n) of the ERA 1996 (see the final bullet point above). A proactive employer may wish to include the above additional terms and conditions of employment in its WSE before 6 April 2020.

Average Statutory Holiday Pay

From 6 April 2020, the reference period for calculating average statutory holiday pay will be increased from 12 weeks to 52 weeks (see page 33 of the Good Work Plan).

Source: The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations (SI 2018/1378).

Childcare Voucher Scheme was not discriminatory

In Peninsula Business Services Ltd v Donaldson (EAT/0249/15), Ms Donaldson was a pregnant employee who was entitled to statutory maternity pay (SMP). She refused to join her employer’s salary sacrifice scheme (SSS) because it provided that her entitlement to childcare vouchers would be suspended during her maternity leave. Ms Donaldson claimed that the SSS amounted to unlawful sex discrimination but the EAT disagreed.

The EAT held that the provision of childcare vouchers under the SSS was a part of an employee’s remuneration under reg. 9 of the Maternity and Parental Leave Regulations 1999. And therefore, the employer did not have to provide childcare vouchers to Ms Donaldson during her maternity leave.

The SSS provided the means to make a deduction from Ms Donaldson's salary to pay for childcare vouchers. But the vouchers were not a benefit in kind that was additional to her salary. And although tax legislation treated childcare vouchers as a non-cash benefit – the provision of the vouchers under the SSS remained to be a part of the Ms Donaldson's remuneration.

The EAT said that Parliament did not intend that an employer must continue providing childcare vouchers when an employee was only receiving SMP and there was no salary from which a deduction could be made to pay for the vouchers.

The EAT also held that sections 18 (Pregnancy and maternity discrimination: work cases) or 19 (Indirect discrimination) of the Equality Act 2010 did not apply to Ms Donaldson's claim of unlawful sex discrimination.

Tribunal awards will increase from 6 April 2016

From 6 April 2016, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2016.

The main increases are:

• The maximum amount of a week’s pay will increase from £475 to £479.
• The maximum compensatory award for unfair dismissal will increase from £78,335 to £78,962.

The daily limit on a guarantee payment remains unchanged at £26.00.

Tribunal awards will increase from 6 April 2015

From 6 April 2015, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2015.

The main increases are:

• The maximum amount of a week’s pay will increase from £464 to £475.
• The maximum compensatory award for unfair dismissal will increase from £76,574 to £78,335.

• The daily limit on a guarantee payment will increase from £25.00 to £26.00.

Guides on shared parental leave and pay

• Shared parental leave and pay: employers' technical guide to shared parental leave and pay is available on the GOV.UK website.
• Shared parental leave and pay is available on the ACAS website.
• Shared Parental Leave and Pay: an employer guide is available on the GOV.UK website.