Should there be a legal right to bereavement leave?

The current position is that there is no strict legal right to time off in the event of bereavement. The only relevant provision is referred to in the Acas employment relations service’s guidance on the time off for dependants

The guidance, available on Acas’ website, says that all employees have the right to time off during working hours for dependants; this time off is intended to deal with unforeseen matters and emergencies.

A dependant could be a spouse, partner, child, parent or someone who depends on an employee for care, for example an elderly neighbour.

The leave can be taken for example:

• to deal with a breakdown in childcare;

• to put longer term care in place for children or elderly relatives;

• if a dependant fall ill or is taken into hospital; or

• to arrange or attend a funeral.

The right is to a “reasonable” amount of time off, although it is not stated how much is reasonable.

The guidance suggests that in most cases a day or two will be sufficient to deal with the immediate crisis, but it will depend on the individual circumstances. Whatever the circumstances, the employee must tell the employer as soon as possible the reason for the absence and how long they expect to be absent.

There is no legal right to be paid. However, some employers may offer a contractual right to pay under the terms and conditions of employment.

The Acas website also covers the issue of compassionate leave, when someone dies who is not a dependant. Here, Acas says: “Many employers do have a policy for compassionate leave, which employees can find in their contracts or company handbooks. Experts maintain that writing paid compassionate bereavement leave into a contract can be a major support to employees, and have a long-term positive impact on their relationship with employers. Having a scheme in place is also helpful for managers, who can fall back on written policy and are spared the ordeal of having to assess the seriousness of the situation themselves.

“Without such a scheme, it is up to employers to use their discretion, being as reasonable and as consistent as possible. Managers will have to have an eye on what the custom and practice has been in the past and apply precedents fairly and consistently. Even so, employees cannot expect to be granted leave automatically. When leave isn’t granted, they may have to use their holiday allowance.”

Workplace Report survey

A Workplace Report survey of bereavement and compassionate leave agreements in unionised workplaces shows that employers and unions have been united in dealing with grief.

The survey found that the median amount of bereavement leave is five days in both public and private sectors, but at the top end of the scale the entitlement is 10 days.

Some of the policies are called bereavement leave, while in other cases bereavement is covered by broader compassionate leave policies and so cover circumstances other than bereavement.

There is only enough space in the two tables to set out examples of some best practice in both the public and private sectors among the many agreements featured on Labour Research Department’s Payline database.

Table 1 shows 12 agreements in the private sector where the entitlement is five days or more.

Private sector agreements covering compassionate that give less than median five days include HSBC Bank, where leave is granted at management’s discretion. That is also the case at UK Life Services (Diligentia) where the leave can be be paid or upaid.

Table 2, covering public sector agreements, shows a range of agreements for the median five days or more. In addition, there were seven more agreements in local government, further education colleges and one fire authority that give 10 days’ leave that had to be omitted for space reasons. And a further 26 public sector agreements on compassionate leave had to be omitted even though the entitlement was 5-8 days.

Members of unions that subscribe to Payline can access information on all the agreements.

Which family members can one take leave for?

In the agreements, whether they cover bereavement or compassionate leave, the definition of “relative” or “family member” varies quite considerably between agreements (setting aside those agreements which do not contain any definition, but simply use one or other term).

Some agreements, such as Age UK, produce fairly exhaustive lists of relatives and may guard against omissions by a phrase such as “and others” for those deemed to be covered. On the other hand, there are others where the list is both short and clearly not open to extension.

Agreements may have more than one level of bereavement leave provision, with higher levels of leave for closer relations. However, some distinguish where the employee is responsible for making funeral arrangements and reference may also be made to travelling times to funerals.

Managerial discretion

Many agreements leave some of this to the discretion of the line manager, but this was reported to be the source of problems in some workplaces with “erratic” application of discretion. The more comprehensive agreements include guidelines for managers or directors to try to deal with this, setting out the criteria to be considered in making a decision.

Is leave entitlement "per annum"

A strange issue, which is treated in different ways in different agreements, is whether the provision should be “per event” or “per annum”. It might seem obvious that bereavement, in particular, should be “per event”, but some agreements make clear that the provision is for a year — in some cases a rolling year, such as at Brooklands College.

Given that the employee has no influence over such events, the notion that they would be denied leave because they were unfortunate as to suffer two bereavements in one year seems difficult to fathom.

Length of service

Most agreements do not limit the provision on the basis of length of service, but a small number indicate that new starters may not qualify.

When can leave be taken?

In a handful of cases, there is provision for bereavement leave to be taken over a period, this is rare and most agreements that specify it make clear that the leave must be taken at the time.

Other agreements specify that the leave will be from the person’s death until their funeral, although most agreements are not so prescriptive.

One factor to take into consideration is different religious practices, which can result in the gap between a person’s death and their funeral varying quite markedly. In Judaism for example, burial takes place as soon as possible after death. And in Islam, orthodox belief mandates burial within 24 hours. However, in other religions the time element is less pressing.

Travelling to funerals

Many agreements address issues around the distance to be travelled to a funeral. For example, workers in the Eddie Stobart warehouse have an agreement which states that “three days’ leave with full pay can be granted for a bereavement in the immediate family. A further one day can be granted to arrange the funeral and another one day if you have to travel more than 100 miles. The period of paid bereavement leave however may be increased up to five days dependent on individual circumstances.”

At the London Borough of Havering, the agreement includes the formula: “One day with pay for grandparent or any other close relative. But if funeral necessitates a journey of over half a day up to two additional days with pay may be granted for travel.”

At City of Westminster College, “staff may be allowed up to three days’ paid leave as a result of serious illness or the death of a close relative. Close relative is defined as spouse/partner, children, siblings, parents and grandparents.

“Staff attending funerals may be granted one day with pay. If the funeral takes place more than half a day’s journey away then up to three days pay may be granted. If the funeral takes place abroad (long haul flight of seven hours or more) then up to five days with pay may be granted.”

Campaign for paid statutory bereavement leave

Workplace Report’s findings can help inform the debate over bereavement leave, which has recently been revived.

There have been calls for a change in the law so that workers have a statutory right to time off for a bereavement, including demands from the National Bereavement Alliance and the National Council for Palliative Care (NCPC), which is an umbrella charity for all those involved in palliative, end of life and hospice care in England, Wales and Northern Ireland.

The NCPC’s report, Life after death, found that that the vast majority of people (87%) felt all employers should have a “compassionate employment policy”, including paid bereavement leave, flexible working and other support. And a similar large proportion of people (81%) agreed that there should be a legal right to receive paid bereavement leave.

“The costs of bereavement are too great to ignore, both for individuals and for society,” said Eve Richardson, chief executive of the NCPC. “Employers have an important role to play by being compassionate and having a bereavement policy in place.

“It is also often the little things that matter and help make a difference, such as kind words from a manager or a card to say we are thinking of you.”

The construction workers’ union UCATT has supported this call stating that the lack of statutory bereavement leave is a major issue for construction workers. It points out that industry’s employers often have “unenlightened bereavement policies”.

General secretary Steve Murphy said “Statutory bereavement leave is urgently needed. Workers who lose a loved one are deeply traumatised, often in shock and are grieving. To refuse them bereavement leave is a simple case of penny-pinching and an entirely false economy.”

Govermnment rejects rights for bereaved parents

There were two separate legislative proposals on bereavement leave, one each from the House of Commons and the House of Lords. The initiative in the House of Commons was a private members’ Bill, Parental Bereavement Leave (Statutory Entitlement) Bill 2013-14, sponsored by the Labour MP for Glasgow South, Tom Harris. The Bill had its first reading last September and its second reading was scheduled for 28 February. However, Harris withdrew the Bill after prime minister David Cameron made clear in a letter to the MP that the government wouldn’t support it.

In the Lords, the issue is being pursued by a Labour peer, Lord Knight of Weymouth, who has tabled an amendment to the Children and Families Bill to give parents a right to take two weeks’ paid leave in the event of the death of their child.

This initiative also looks set to fail as the coalition has made clear its opposition,despite widespread support for the right to be introduced. The Department for Business, Innovation and Skills has described the proposals as “not feasible”.