14th May 2019
Compassionate leave entitlement can sometimes be a grey area as there is no statutory right to bereavement leave except in limited circumstances. Section 57 (A) of the Employment Rights Act 1996 gives the right for an employee to have “reasonable” time off to deal with an emergency such as a bereavement involving a dependent. The employer does not need to pay the employee for this time off but many employers do offer paid compassionate leave.
There were calls in 2013 and 2014 for the introduction of some form of statutory bereavement leave over and above the existing limited statutory rights. However the government stated that it was not feasible to legislate in this area but Acas would produce some guidance.
The Acas Guidance, "Managing bereavement in the workplace" is a good practice guide which was published in September 2014 and deals with a number of issues beyond the mere granting of time off. This includes good practice when dealing with bereavement, avoiding discrimination and addressing bullying.
A compassionate approach
The Acas Guidance notes that grief impacts on the emotional, physical, spiritual and psychological wellbeing of the person who is bereaved. Research suggests that at any one time one in ten employees are likely to be affected. The Guidance recognises that bereavement in the workplace can be challenging to manage. Employees may need to take time off unexpectedly, find their performances impacted, or be temporarily unable to perform certain roles. Acas advocates a compassionate and supportive approach which demonstrates that the organisation values its employees which in turn helps build commitment, reduces sickness absence and retains the workforce.
The effects of bereavement
The loss of a close family member such as a parent or child can be devastating for the whole family. Employers and employees may need to consider measures to help the bereaved employee return to work and be ready to support them if they have new or increased caring responsibilities, for example, by offering part-time hours or flexible working.
For some employees the effects of grieving can lead to mental ill health such as depression or post-traumatic stress disorder. If this condition is long term, which is generally defined as lasting or likely to last a year, and the impact affects the employee’s ability to undertake day to day activities, this employee could be deemed disabled under the Equality Act 2010. The employer has a duty to make reasonable adjustments for a disabled employee and so may need to consider measures such as adjusting work loads or working hours.
Many religions have their own particular funeral rights and bereavement rituals. For example, Hindus are required to mourn at home for 13 days, Jews for seven days and Muslims, as with several other religions, must bury the dead as soon as possible which can mean taking leave at very short notice, possibly to attend a funeral abroad. The Equality Act 2010 protects employees from discrimination because of their religion or belief and so employers must try to accommodate the employee’s religious customs as best they can. Unless the employer can objectively justify their decision to turn down an employee’s request for extended bereavement leave it may amount to indirect religious discrimination under the Equality Act.
Female employees who suffer a stillbirth after 24 weeks are entitled to up to 52 weeks statutory maternity leave and/or pay. Similarly the subsequent death of a child born alive would not affect the mother’s entitlement to maternity leave.
- Deborah Scales - Employment Solicitor
- Daniel Simister - Employment Solicitor
- Philip Pearson - Employment Solicitor
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