MANAGING EMPLOYEE BEREAVEMENT

Tina Chander, head of employment law at Midlands law firm Wright Hassall, discusses how to handle compassionate leave sensitively and efficiently to prevent bereaved employees suffering in silence.

Eventually, as an employer, you will find yourself in a situation where you have to deal with an employee who has lost a loved one, because bereavement is inescapable.

It can be challenging in such situations to strike the right balance between maintaining your business operations and protecting an employee’s emotional welfare. But what legal responsibilities do employers have at such times?

BEREAVEMENT LAW

UK employment law offers no formal guidance regarding bereavement or compassionate leave issues (outside of statutory parental bereavement leave). However, under the Employment Rights Act of 1996, all employees have the right to take “a reasonable length of time” off work to manage issues surrounding their “dependents,” such as a spouse, civil partner, child, parent, or anybody else who needs their physical care.

What a “reasonable” period constitutes is debatable, though it is normally accepted to be between two and five days. Many employers specify their stance on the matter within their employment contracts or in separate bereavement policies, but it is still wise to examine each case individually, taking into account the nature of the employee’s relationship to the deceased as well as the circumstances of their death.

If an employee requires longer time off than what was initially agreed upon, they should request it as soon as it is practicable. However, prolonged bereavement leave is often unpaid and will only be granted at the employer’s discretion.

Employers are required by law to protect the physical and mental health of their employees under the Health and Safety at Work Act of 1974 and the Management of Health and Safety at Work Regulations of 1999.

This entails never forcing someone to return to work while depression or anxiety are factors, and carefully evaluating their progress and the risk posed by their state of mind once the person is back in their position.

If a prolonged absence is the result of mental health issues brought on by the loss of a loved one, a fit note should be issued since the employee may be entitled to paid sick leave as per the terms of their employment agreement.

Whether an employee is entitled to bereavement pay will depend on the specifics of their employment agreement, however, generally speaking, businesses include a rate for bereavement pay within their terms and conditions.

Additionally, employers must take measures to prevent any employee on bereavement leave from being marginalised or subjected to unjust treatment because of their absence from the workplace. They cannot be made redundant only because they haven’t been physically working, and they must be given the same chance to apply for any promotions or training schemes. An employee may have grounds to file a tribunal claim if they believe they have been treated unjustly because of their bereavement leave.

When determining the duration of compassionate leave after a loss, all religious beliefs and practices must also be respected and considered. According to the Equality Act of 2010, for instance, it may be deemed indirect discrimination to refuse an employee enough time to observe religious mourning customs that are important to their faith.

PARENTAL BEREAVEMENT

According to the Parental Bereavement (Leave and Compensation) Act, parents or main caregivers who have lost a child under the age of 18 are entitled to two weeks of parental bereavement leave and/or statutory parental bereavement pay.

Employees who have worked for at least 26 weeks before their bereavement are eligible for statutory bereavement pay, which is equal to £156.66 a week or 90% of their average weekly earnings (whichever is lowest). The right to two weeks of unpaid parental bereavement leave will still be available to those who have not met this service requirement.

The law also provides for 52 weeks of paid maternity leave for workers who have a stillbirth after 24 weeks of pregnancy, protecting their rights.

The employee’s standard employment rights, such as the right to raises in pay and annual leave, remain unaffected throughout this time.

BEREAVEMENT POLICIES

Some companies will implement a bespoke bereavement policy to prevent the necessity for negotiations during a trying time. Such policies typically outline the following:

• How bereavement leave will be handled

• How much time off an employee can expect to take following a bereavement

• What the employee will be paid during bereavement leave

• What the mechanisms are for reporting a bereavement

• The employer’s position if the deceased was not considered a “dependant” under the Employment Act

• How the return to work will be handled, such as whether a fit note or mental health certification will be required.

RETURN TO WORK

Whether an absence is brought on by illness or compassionate considerations, the employer has a duty to communicate with the employee and to accommodate any reasonable demands that would facilitate the employee’s return to work.

Be mindful that a loss may cause substantial changes to one’s personal circumstances, such as how childcare is organised or their financial status. Employees may need to modify their work schedules or take on a somewhat different role to manage their new responsibilities or cope with practical concerns related to their loss. This can entail offering part-time hours, adopting flexible or hybrid work arrangements, or staggering a return to duties.

When the affected person returns to work, schedule ongoing one-on-one meetings to monitor their progress. This will guarantee that lines of communication remain open and that issues are brought to light as soon as they arise. To avoid negatively impacting a person’s employment record, bereavement should also be considered while evaluating performance.

Empathy is essential for managing a worker’s grief. The most rational and considerate course of action is to treat others in the same manner that you would like to be treated if you were in their shoes. It will be easier to maintain employees’ engagement, loyalty, and integration into the team if a welcoming and caring environment is provided where they can work without fear of judgement.