It looks likely that a new set of parental rights will soon become law, with the recent publication of the Parental Bereavement (Pay and Leave) Bill. If the Bill passes through all the required stages, regulations will be introduced to give certain rights to parents who lose a child below the age of 18, including stillbirths after 24 weeks. The leave and pay entitlements and eligibility criteria are closely aligned to those associated with other family-friendly rights such as the right to paternity leave.

This bill was introduced in September 2016 by a parliamentary backbencher, Will Quince, after he lost his son who was stillborn. Mr Quince made the point at the time that, as parents of a stillborn child, he and his wife were entitled to statutory maternity and paternity pay, but that if parents lose a child later in life they did not have the same entitlement. This does indeed seem surprising given that the experience of losing an older child will be no less painful or traumatic.

The bill proposes to give bereaved parents the right to:

• At least two weeks’ leave following the bereavement, which is granted regardless of length of service.
• At least two weeks’ statutory bereavement pay for employees’ with at least 26 weeks’ service. Similar to statutory paternity, maternity and shared parental pay, this is paid at the lower of 90% of average earnings and the government prescribed rate (the explanatory notes to the Bill suggest that a large part of this will be funded by HMRC, indicating a similar approach to the one taken to statutory maternity pay).
• Protection from detriment and dismissal (including selection for redundancy) as a result of them taking bereavement leave.

The service requirement for statutory bereavement pay is likely to be one of the more controversial provisions. Whilst it clearly exists in order to limit the pressure on business, the rationale for it being the same as the service requirement for, say, maternity leave, is questionable. Unlike having a child, the fact and timing of bereavement is not a choice. Whilst prospective parents will often elect to wait until they have completed 26 weeks’ service before having a child, no such control exists when it comes to bereavement.

Some may also question the fact that the statutory regime is limited to parents who lose a child under 18. This was the group of people originally targeted by Mr Quince, triggered by his own experience of losing a child. However, given the pain and disruption caused by any bereavement, and the potential for this to be compounded by worry about taking time off work and losing pay, there are good reasons for the entitlements to be extended to employees who lose other relatives – and perhaps for similar entitlements to be created for contractors and the self-employed. That said, it is difficult to know how far this principle should be extended. It is also difficult to introduce general rules in this respect; blanket policies limiting entitlements to “immediate family bereavements” may unfairly exclude those with no immediate family but with extremely close friendships. Similarly, it is challenging to legislate for every circumstance.

Of course, employers are able to deal with such exceptional circumstances and the gaps left by legislation by offering leave and pay on a discretionary basis. Many employers do this already; CIPD research suggests that most employers give their employees five days’ paid leave to deal with emergencies such as bereavements, perhaps because such practices can greatly improve employee relations and staff retention. Indeed, according to the 2014 report “Life After Death” by the National Bereavement Alliance, 56% of people surveyed said that they would consider leaving their job if their employer did not provide proper support if someone close to them died. It is also likely that granting discretionary bereavement leave helps to reduce employee stress and sickness absence.

Some may argue that the existence of such discretionary arrangements removes the need for a statutory regime. However, that is not necessarily the case. Firstly, in the absence of statutory rules, many employers (particularly smaller businesses) will decide not to exercise discretion due to cost considerations, business pressures or a fear of setting a precedent. Secondly, pressure to return to work is likely to be felt less keenly by an employee exercising a statutory right to bereavement leave than one relying on their employer’s discretion. Finally, employers have been known to use discretionary payments as leverage to gain an advantage in negotiations when, for example, trying to introduce changes in contractual terms and conditions. Whilst this is often legally permissible, it can appear disingenuous and some entitlements should arguably be “ringfenced” from this practice by being enshrined in statute.

It is expected that the new regulations will be introduced in 2020. At the moment it seems unlikely that they will be substantially amended as they have government backing in their current form. However, it will be interesting to see what, if any changes will be introduced to employers’ discretionary schemes in light of the issues outlined above.

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