Jack’s Law: Regulations laid before Parliament

Following years of consultation, the government has now laid regulations before Parliament to implement Jack’s Law – statutory parental bereavement leave and pay, which will come into effect on 6 April 2020.

Following the death of her son in 2010, Lucy Herd has been tirelessly campaigning for better bereavement rights for parents. Her efforts for legal rights for parents dealing with such unfortunate and devastating situations, outside what is commonly known as compassionate leave (if offered by an employer), became known as the quest for Jack’s Law. At the time, outside any compassionate leave offered, parents of bereaved children would need to take time off as sick leave or holiday.

After many years of consultation, on 23 January 2020, the government announced that it had laid the draft Parental Leave and Pay Regulations (the Regulations) before Parliament. Once enacted, the regulations will entitle:

all employee parents who lose a child under the age of 18-years-old, or suffer a stillbirth after 24 weeks of pregnancy after 6 April 2020, to take two weeks’ statutory leave, to be taken in one block or as two separate blocks of a week; and

all employee parents with at least 26 weeks’ service, who meet minimum earnings criteria, to qualify for statutory parental bereavement pay. This is paid at the same rate as statutory paternity, maternity, adoption and shared parental leave pay – currently £148.68 per week or 90% of average weekly earnings where this is lower.

This new benefit, to be known as Jack’s Law, is noted to be the most generous offering of parental bereavement leave and pay in the world. The taking of any such leave, which can be taken by both parents, and must be taken within 56 weeks from the date of death or stillbirth, was intended to offer flexibility. This was so that employees, in these very unfortunate circumstances, could match their leave to the times they need it most, which could be used in the early days after death, for the times associated with any funeral planning, any post mortems or inquests, or over the time of the first anniversary of the child’s death – accepting also that parents will obviously need their own time to grieve and thereafter cope with their own loss, in their own time. Every case is different, and everyone will naturally deal with such matters differently. There cannot be a one size fits all approach here, so such a rigid entitlement may not sit quite right for all those that require it.

While the offer is noted as being generous, it does however beg the question of whether two weeks’ leave in total (in some cases with statutory pay) is sufficient to deal with the loss of a child. Employers are therefore encouraged, alongside these statutory rights, to act with compassion and allow for additional time off for compassionate leave, and with pay where possible, for a reasonable period of time to help. For this reason, these statutory rights are promoted as being minimum rights for employers; it is accepted that many employers will often go much further to assist their employees in such difficult circumstances, but some don’t.

Again, while noted as being generous, unfortunately the regulations do not provide for any period of grieving that extended family members will suffer, such as siblings or grandparents or others that may have been heavily involved in the upbringing of the child. Again, an employer’s offering of compassionate leave to such persons will need to be relied upon here.

Is the level of statutory pay offered considered reasonable, and should it be limited only to those who have more than 26 weeks’ service? It is clear that there will be circumstances where the statutory entitlements are insufficient for some, and often many, particularly where parents have financial worries, or indeed where parents are particularly high earners. Will employees actually be more inclined not to take up their statutory entitlements, and revert to an employer’s offering of compassionate leave (which may be paid at full pay) and/or seek to take advantage of full paid sick leave or holiday?

It is considered important therefore that employers do have in place specific bereavement policies that recognise the very difficult circumstances that parents, and other family members, will go through. Where these policies already exist, they will need to be updated to incorporate the new statutory entitlement, alongside the existing offer of compassionate leave. Employers should also remember that every bereavement and the impact that it has will be different to all employees. Therefore, training should be offered to assist managers and HR teams to be able to deal with sensitive matters in a compassionate manner, including ways in which to communicate with staff, how to review ongoing periods of absence and whether any adjustments may be necessary in respect of any employee’s return to work.

Overall, it is hoped that with the introduction of Jack’s Law that the provision of parental leave and pay is not so patchy as it has been previously, although it does seem that much will still come down to the overall goodwill of the employer – particularly in very difficult cases.