Tina Chander, Head of Employment Law at Wright Hassall, offers her advice to employers when dealing with a member of staff who has suffered a significant loss.
As an employer, at some point, you’ll ultimately have to deal with a worker who has lost a loved one, since grieving is inescapable.
In situations like these, striking the right balance between protecting a worker’s mental health and maintaining corporate operations may be tough. But what legal responsibility do employers have in these types of cases?
Bereavement and compassionate leave aren’t clearly defined under UK employment legislation (outside of statutory parental bereavement leave). But employees do have the right to take ‘reasonable time’ off work to deal with problems involving ‘dependents’, such as a spouse, civil partner, child, parent, or anybody else who needs on their physical care, according to the Employment Rights Act of 1996.
What constitutes ‘reasonable’ isn’t defined by law unless it is incorporated in an employment contract or a separate policy, however it is commonly regarded to be between two and five days. However, each case should be evaluated on its own merits, taking into account the employee’s relationship to the dead as well as the circumstances surrounding their death.
Employees who require additional time off beyond what has been agreed upon should do so as soon as possible. Extensive bereavement leave is frequently unpaid and granted at the discretion of the employer. Employers, however, should be aware of their legal obligation to protect an employee’s well-being under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.
This includes not rushing a return to work if mental health is an issue. However, if the employee’s lengthy absence is due to sadness or anxiety as a result of the bereavement, a fit note should be issued since the employee may be entitled to sick pay.
Employers are responsible for ensuring that workers on bereavement leave aren’t treated unfairly. The bereaved must be given the same opportunities for development or training as everyone else, and they cannot be fired simply because they’re physically absent. If an employee believes they’ve been marginalised as a result of their absence, they may have grounds for a tribunal claim.
When determining leave length, religious beliefs and customs must also be considered. Under the Equality Act 2010, for example, denying an employee adequate time to undertake religious mourning rites might be deemed indirect discrimination.
Under UK law, parents or primary carers who have lost a child under the age of 18 are treated differently. People affected are entitled to two weeks of parental bereavement leave and/or statutory parental bereavement pay under the Parental Bereavement (Leave and Pay) Act.
Employees who have worked for at least 26 weeks previous to their bereavement are entitled to statutory bereavement pay of £156.66 per week, or 90% of their average weekly wages (whichever is lowest). Those who’ve not satisfied this service requirement are eligible for two weeks of unpaid parental bereavement leave.
The legislation also protects the rights of employees who have a stillbirth after 24 weeks of pregnancy by providing them with 52 weeks of paid maternity leave.
During this time, the employee’s usual job rights are also preserved, including the right to pay raises and accumulate annual leave.
Some firms will have a unique bereavement policy in place to avoid unnecessary negotiations during a tough period. Such policies should state:
• How the time off will be handled;
• How much time off is reasonable to expect;
• What will be paid to the employee during bereavement leave;
• Procedures for reporting a bereavement;
• The employer’s position if the deceased isn’t considered a ‘dependant’ under the Employment Act;
• How the return to work will be handled.
Return to work
Be mindful that a loss might cause substantial changes in a person’s personal position, such as a change in childcare needs or greater financial demands. Employees may need to adjust their workload or tasks in order to manage their new circumstances.
The best approach to cope with this is to be flexible. Part-time hours, flexible or hybrid working arrangements, or a phased return to responsibilities might all be recommended.
Routine one-on-one meetings should be held after returning to work to track progress. This ensures that any issues are brought to light as they develop. Bereavement should be considered while conducting performance reviews to prevent unjustly damaging a person’s work history.
Empathy is necessary for effectively addressing a worker’s bereavement. The most practical way to show your support is to treat people in the same way that you’d like to be treated if the tables were turned. The establishment of a safe and supportive environment for the bereaved will help to ensure their sustained participation, loyalty, and integration into the team.
Get more details about the services and support on offer from Wright Hassall here