Fourth Report Contents

Instruments drawn to the special attention of the House

Draft Parental Bereavement Leave Regulations 2020

Draft Statutory Parental Bereavement Pay (General) Regulations 2020

Date laid: 23 January 2020

Parliamentary procedure: affirmative

The draft Regulations propose the introduction of a new statutory entitlement to Parental Bereavement Leave and Pay for employed parents who lose a child. The policy, referred to as “Jack’s Law”, has received considerable public, media and Parliamentary interest.

The draft Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.

1.The Department for Business, Energy and Industrial Strategy (BEIS) has laid these two sets of draft Regulations with a shared Explanatory Memorandum and Impact Assessment. The draft Regulations propose the introduction of a new statutory entitlement to Parental Bereavement Leave and Pay for employed parents who lose a child on or after 6 April 2020. The policy has received considerable public, media and Parliamentary interest and has been referred to as “Jack’s Law”.1

2.BEIS explains that the draft Regulations have been laid under the Parental Bereavement (Leave and Pay) Act 2018 (“the 2018 Act”), which passed through Parliament as a Private Member’s Bill with Government support. According to BEIS, the objectives of the Regulations are to give bereaved employees a statutory right to paid leave to “provide space for them to grieve” following the death of a child and to “send a signal to employees and employers about the importance and value of recognising bereavement and providing adequate support for parents in such circumstances”. BEIS says that the draft Regulations would set a statutory minimum provision which all bereaved employed parents can rely on, and that they would establish a statutory baseline of support for employers to adhere to when managing staff bereavement.

3.According to BEIS, only around two thirds of businesses currently provide bereavement leave. The Department says that previous reliance on employer guidance has not been effective in changing the levels of provision and increasing support for bereaved parents. BEIS estimates that as result of the draft Regulations 10,200 parents per year would be eligible for Parental Bereavement Leave, of whom 9,300 would also be eligible for statutory Parental Bereavement Pay. BEIS expects a net impact on business of around £1.2 million per year.

How the new statutory entitlements will work

4.The draft Parental Bereavement Leave Regulations 2020 propose a new statutory entitlement for bereaved parents who are employees to a minimum of two weeks’ leave from their work in the event of the death of their child (aged 0-17) or stillbirth, regardless of how long they have worked for their employer. The draft Regulations propose that the bereaved parent only has to provide minimal notice (and no evidence of entitlement) in order to take the leave. Bereaved parents would be given a window of 56 weeks from the death in which to take the entitlement, and the choice to take the two weeks consecutively or non-consecutively within that period. The draft Regulations propose giving employees protection from detriment while on leave or afterwards, so that their employer cannot treat them less favourably because they took bereavement leave.

5.The draft Statutory Parental Bereavement Pay (General) Regulations 2020 propose a new statutory entitlement for bereaved parents who meet certain eligibility criteria (as for all other statutory family leave payments) to receive a statutory payment while they are absent from work. This would be paid at either the statutory flat rate of £151.20 per week for 2020/21, or at 90% of average earnings calculated over a set reference period, whichever is the lower.

6.The Department plans to publish draft guidance initially, once the Regulations have been made and before they come into force on 6 April 2020, consisting of an employer guide and guidance for employees. This will be in the same format as is provided for other similar rights. BEIS will also bring forward further regulations, under the negative procedure, to deal with the administration of statutory Parental Bereavement Pay, and the entitlement of certain persons abroad and mariners, and to make consequential amendments. The Department anticipates that all relevant legislation will be in place by mid-March, and that the draft guidance will be finalised then. We asked the Department whether this timetable left employers with enough time to familiarise themselves with the new entitlements. BEIS told us that:

“We are hopeful that the draft affirmative instruments will be made some way in advance of 6th April, meaning that we can publish the guidance early and give employers and employees as much time as possible to prepare. However, we appreciate that this may still be a relatively short window – subject to how long the instruments take to pass through Parliament. To mitigate this, we have been working closely with HMRC over the last 18 months to disseminate information about the new entitlement to employers and payroll providers (key stakeholder groups who will administer this entitlement on behalf of the Government). We have provided specific training to a group of payroll providers (through the Chartered Institute of Payroll Professionals) on Parental Bereavement Leave and Pay, and have more sessions planned with HR professionals and other employer representatives. In addition, we have worked closely with bereavement charities to ensure that this new entitlement is reflected in their guidance. There will be further communications in the lead up to implementation on 6th April.”

Consultation

7.BEIS carried out a 12-week consultation on the proposals while the 2018 Act was going through Parliament. There were 1,448 responses, of which 95% were from individuals. The Department also held round-table discussions with stakeholder groups representing the interests of businesses and bereaved parents. BEIS says that the consultation exercise also took account of views expressed in both Houses during the passage of the 2018 Act.

8.According to BEIS, the draft Regulations reflect feedback received during consultation in the following areas in particular:

Non-employee working parents

9.One of the issues raised during the passage of the 2018 Act through Parliament was eligibility in relation to working parents who do not qualify as employees, including in the context of ‘precarious contracts’ and the ‘gig economy’. We asked the Department whether these issues had been considered. BEIS told the Committee that, in their response to the Matthew Taylor Review of working practices,2 the Government had agreed “with the principle of equalising benefits for the self-employed but as the review says, it is right to only consider making changes to this area once we have carefully considered this in the wider context of tax, benefits and rights over the longer term.”

10.The Department added that in relation to these draft Regulations:

“We did not specifically consider extending entitlement to Parental Bereavement Pay to the self-employed in the context of drafting the regulations as it would not be appropriate to look at this particular entitlement in isolation. We recently consulted on high-level options for reforming parental leave and pay with a view to promoting gender equality at home and at work and we are also evaluating the Shared Parental Leave and Pay scheme [which allows partners who are having a baby or adopting a child to share up to 50 weeks of parental leave and up to 37 weeks of parental pay]. Whilst the consultation relates to entitlements for employees, we have had a number of discussions with/representations from groups representing the self-employed and are considering these. We are still gathering data in support of the evaluation of Shared Parental Leave but should be in a position to report on this later in the year.  We will consider this data alongside the responses to the consultation on options for reforming parental leave and pay and publish the Government Response to the consultation in due course.”

11.The Committee will be interested to see progress being made in the consideration of how employee benefits may be extended to other workers, such as those with ‘precarious contracts’.

Devolution

12.BEIS explains that, with employment matters devolved in relation to Northern Ireland, the new provisions would apply to England, Wales and Scotland, and that the Welsh and Scottish Governments were consulted on the policy.

Conclusion

13.There has been considerable public, media and Parliamentary interest in the introduction of statutory Parental Bereavement Leave and Pay. The draft Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.


1 This derives from a campaign by Lucy Herd, whose 23-month-old son Jack drowned in a pond in 2010. At the time, the employer of Jack’s father allowed him only three days off work to grieve.

2 Department for Business, Energy and Industrial Strategy, Good work: a response to the Taylor Review of modern working practices (7 February 2018): https://www.gov.uk/government/publications/government-response-to-the-taylor-review-of-modern-working-practices [accessed 31 January 2020].




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