Paternity Leave (Bereavement) Act – New legislation

After a speedy passage through parliament prior to its dissolution, the Paternity Leave (Bereavement) Act has been passed into law.

Purpose of the Act

The purpose of the Act is to close a gap in the law that exists for expectant fathers and partners. Statutory paternity leave can last up to two weeks and in order to be eligible for statutory paternity leave an employee must not have taken shared parental leave, must be taking leave to care for their child or partner, and must have 26 weeks continuous employment by the child’s birth, or placement in cases of adoption.

In circumstances where the mother passes away, those without 26 weeks service fall short of the requirements for statutory paternity leave. While it is open to an employer to offer leave in these circumstances, it is not a legal requirement. Where the partner becomes the primary caregiver to the child, the two weeks statutory paternity leave given fall short of what is needed in those circumstances.

What does the Act change?

Though the Act is now law, for the changes to come into force regulations need to be put in place. It will therefore be for the new government to implement these changes after the election.

Once regulations are in place, the following changes will be introduced:

• Partners who have already taken shared parental leave will not be prevented from taking paternity leave in the event the mother passes away;
• Where both the mother and child die, and leave cannot be taken in respect of caring for a child or supporting their partner, the bereaved partners will still be able to take leave;
• The minimum service requirement of 26 weeks will be scrapped to allow bereaved partners to take paternity leave from day one;
• Introduce the option for regulations which allow a bereaved partner to take ‘keeping in touch days’ without bringing their leave to an end.

Though not set out in the Act, it is the intention of the MP who sponsored the bill that the regulations will also bring into force an increase in paternity leave for bereaved partners. Paternity leave in these circumstances would increase from 2 weeks to 52 weeks to allow the partner additional time to care for the child. Though this is not a guaranteed change, it appears to have been a secondary purpose of the Act.

Comment

None of the changes highlighted above are yet in place, but employers should keep a look out for the regulations bringing these changes into effect. Once regulations are in place, the changes in the Act will only apply in specific circumstances. In the UK there are approximately 180 maternal deaths within 12 months of childbirth, so many employers will never need to use the provisions of this Act.

In the meantime, employers may choose how they wish to deal with employees in the event of such circumstances arising. Many employers would allow bereaved employees to take leave in any event under an existing bereavement or compassionate leave policy, however once enacted the new law will provide a right to a minimum amount of leave in these specific circumstances.

For further guidance on paternity or other statutory leave, please get in touch with a member of the Employment Team who will be happy to help.