The Northern Ireland Assembly needs your help with the project to redesign our website. Take our survey and tell us what you think of the current site and what you would like to see in a new one. Closing date is Sunday 10 March 2024. Take the survey and join the conversation!

The Parental Bereavement (Leave and Pay) Bill - EFM As Introduced

 PARENTAL BEREAVEMENT (LEAVE AND PAY)
BILL
________________

EXPLANATORY AND FINANCIAL MEMORANDUM


Introduction

1. This Explanatory and Financial Memorandum has been prepared by the Department for the Economy (“the Department”) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or Schedule does not seem to require an explanation or comment, none is given.


Background and Policy Objectives

3. Following the introduction of Parental Bereavement Leave and Pay legislation in Great Britain in April 20201, the Minister for the Economy gave a commitment to introduce similar provision for working parents in Northern Ireland.

4. This Bill will provide the following:


Parental Bereavement Leave – the Department will be under a duty to provide, by regulations, a right for employed parents to be absent from work for a prescribed period (with at least two weeks leave to be set as the minimum entitlement) following the death of a child. All employed bereaved parents who meet the eligibility conditions, regardless of how long they have worked for their employer, will be entitled to this leave.


Parental Bereavement Pay – a right for those eligible parents who meet minimum requirements relating to continuity of employment to receive a fixed or earningsrelated weekly rate of pay (which rate is to be prescribed by regulations). In line with other entitlements to paid statutory leave, the Bill allows provision to be made for employers to reclaim payments from the Government.


Employment protections – parents taking parental bereavement leave will have the same employment protections as those associated with other forms of family related leave (i.e. Maternity, Paternity, Adoption, Parental and Shared Parental Leave). This includes protection from dismissal or detriment as a result of having taken leave.

5. This Bill achieves this through the insertion of a number of provisions into the Employment Rights (Northern Ireland) Order 1996 and the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and the consequential amendment of that Order, that Act and other statutory provisions.


Consultation

6. The Department ran a public consultation between 15 June 2020 and 10 August 2020. The consultation focused on the four essential pillars of the Parental Bereavement Leave and Pay legislation that was introduced in GB in April 2020.

7. The four essential pillars were identified as:


the definition of a ‘bereaved parent’;


defining how and when parental bereavement leave and pay can be taken;


identifying what level and length of notice period would be necessary;


establishing what evidence may be required to show that an employee is entitled to leave and pay.

8. The Department published its consultation response on 20 January 2021. The response detailed the leave and pay provisions that the Department wished to introduce by way of an Assembly Bill. The response affirmed that the NI provisions would mirror those that had been introduced in GB.


Options Considered

9. The consultation signposted the Department’s wish to mirror the leave and pay provisions that were introduced in GB in April 2020. Whilst there has been some deviation in employment legislation between NI and GB in recent years, this has not been the case for family related policy and legislation entitlements, where effort has been made to broadly maintain a parity between both jurisdictions.

10. In this case, consideration was given to the option of making parental bereavement pay (PBP) a Day 1 right rather than requiring a 26 week qualifying period of employment. The Department consulted with HMRC on this matter and they confirmed that whilst making the change was technically possible, the change would result in a significant one off cost to the NI Budget.

11. It was determined that this upfront cost made the possibility of making PBP a Day 1 right disproportionate given the, thankfully, small number of parents who suffer the loss of a child in NI each year (average of 245 child deaths in NI over 5 years from 2014-20182) and the even smaller number of bereaved parents who would not meet the 26 week qualifying provision.

12. In addition to this upfront cost, consideration was given to the fact that should PBP in NI be introduced as a Day 1 right, payroll software developers would need to consider reflecting this change within their payroll systems. This would have timing implications for the introduction of the entire Parental Bereavement Leave and Pay Bill and would have cost implications for payroll providers. It could also impact NI employers if payroll providers decided not to make adjustments to accommodate the change in NI. The current GB PBP system is already set up to include NI but only on an equivalent basis to GB.

13. Accordingly, it was decided that parental bereavement leave and pay provisions in NI would mirror the provisions in GB and that there would be no deviation.


Overview

14. At present, there is an entitlement to unpaid time off to deal with an emergency involving a dependant. However there is no specific parental entitlement to time off work (paid or otherwise) following the death of a child. Some employers allow parents to take compassionate leave. This is at the discretion of the employer and there is therefore no minimum standard observed by all employers.

15. Employed parents who lose a child from 24 weeks’ gestation or whilst already accessing an existing family related leave and pay right, for example maternity or paternity leave, are entitled to take or remain on that leave for its duration. This Bill would not change this entitlement but would give employed parents an additional right to time away from work following the death of a child aged under 18.

16. It provides for regulations to give employed parents a day 1 right to a minimum of 2 weeks of leave away from work should they wish to take it. This means that an employee would be eligible regardless of their length of service with their current employer.

17. Employed parents would also be entitled to a fixed or earnings-related weekly rate of pay in respect of the two weeks’ leave, subject to a requirement that the employee has worked for their employer continuously for at least 26 weeks by the end of the week before the week of the child’s death.

18. The introduction of a specific, statutory entitlement to parental bereavement leave and pay will set a minimum standard for employees and employers. The intention of the policy is to provide certainty for employed parents and employers in relation to parents’ right to time off from work following the death of a child.

 

Commentary on Clauses

Clause 1 - Parental Bereavement Leave

Clause 1 of the Bill amends Part 9 of the Employment Rights (Northern Ireland) Order 1996 by inserting a new Chapter 4, consisting of Articles 112EA to 112EE, which will result in the provision of an entitlement to parental bereavement leave.

Article 112EA - Parental Bereavement Leave

Article 112EA requires the Department to make regulations to give an entitlement to employed parents to time off work following the death of a child. It provides for the conditions of entitlement to be defined in regulations by reference to the employee’s relationship with the child who has died, including by reference to caring for the child prior to the child’s death.

Regulations must set the duration of leave and when the leave can be taken. The leave entitlement must be a period of at least 2 weeks; and the regulations must establish a period within which the leave may be taken, which must extend to at least 56 days after the child’s death. The regulations must also specify that, where more than one child dies, the employee is entitled to leave in respect of each child.

In addition, regulations can make provision for how the leave is to be taken.

A child is defined as being under the age of 18 years and a week is any 7 day period.

 

Article 112EB - Rights during and after Parental Bereavement Leave

Article 112EB requires the regulations made under Article 112EA to set out:


the employee’s rights in relation to retaining their existing terms and conditions of employment, whilst taking parental bereavement leave;


the employee’s obligations in relation to those terms and conditions;


the employee’s right to return to work once their leave period has concluded and the nature of the job to which they are entitled to return, as well as the terms and conditions applicable on return, and matters such as seniority, pension and similar rights.

The reference to ‘terms and conditions’ in this context is not limited to contractual terms and conditions, but does not include remuneration. Regulations can specify what things should, or should not be, seen as ‘remuneration’ for this purpose.

 

Article 112EC - Special Cases

Article 112EC allows the regulations to make special provision for the redundancy and dismissal of employees during a period of parental bereavement leave, including whether an employer is required to offer alternative employment, and the consequences of failing to comply with the regulations.

 

Article 112ED - Chapter 4 Supplemental

Article 112ED allows the regulations made under Article 112EA to set out what notices and evidence must be given by an employee to their employer, and what procedures are to be followed, in order to take parental bereavement leave as well as any requirements for record keeping. They can also set out the consequences of not complying with any of these requirements or procedures.

The regulations can also make provision for situations where an employee also has a nonstatutory right to take parental bereavement leave (for example, a right arising under their contract of employment).

Regulations can also modify the way in which a week’s pay is calculated in Chapter 4 of Part 1 of the Employment Rights (Northern Ireland) Order 1996 to take account of periods of parental bereavement leave. The concept of ‘a week’s pay’ is widely used in that Order, for example in Article 153 which sets out how the basic Industrial Tribunal award for unfair dismissal should be calculated.

 

Article 112EE - Power to extend Chapter to stillbirths

The entitlement to parental bereavement leave under Articles 112EA to 112ED applies on the death of a child under 18. Article 112EE enables regulations to extend this provision to include parents of children stillborn after 24 weeks of pregnancy.


Clause 2 - Parental Bereavement Pay

Clause 2 of the Bill adds Part 12ZD (containing sections 167ZZ9 to 167ZZ18) to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to create an entitlement to parental bereavement pay.

 

Section 167ZZ9 - Entitlement

Section 167ZZ9 provides that an employee who meets certain conditions will be eligible for parental bereavement pay.

These conditions are:


that the employee is a bereaved parent (because they meet the conditions to be set in regulations as to their relationship with the child);


that the employee must have been continuously working for their employer for at least 26 weeks by the end of the week immediately before the one in which the child dies (this is known as the ‘relevant week’);


that the employee is still employed by this employer at the time of their child’s death and;

that, over an 8 week period ending with the end of the relevant week, the employee’s normal weekly earnings are not less than the Lower Earnings Limit (whatever this is at the end of the relevant week).

Section 167ZZ9 specifies that the pay entitlement is applicable for each deceased child in the event of the death of more than one child.

 

Section 167ZZ10 - Entitlement: Supplementary

Section 167ZZ10 specifies that, in order to receive payments, an employee must give notice to their employer of the week or weeks they are intending to take leave. This must be in writing if the employer requires it.

Regulations may provide for when that notice must be given, and can disapply or modify the requirement for notice in specified circumstances. They can also set out requirements for evidence relating to proof of entitlement.

Subsection (4)(a) provides that the Department may, by regulations, subject section 167ZZ9(2)(b), (c) or (d) to prescribed modifications in certain prescribed cases.

Regulations may specify that someone employed by the same employer for at least 26 weeks, but under different contracts of service which were not continuous, will nevertheless meet the test for continuous employment. They can also prescribe circumstances for other employees in which employment is to be treated as continuous.

The regulations can specify how earnings are to be calculated or estimated for the purposes of deciding whether an employee meets the earnings threshold. This includes being able to identify particular types of payments which are to be excluded from the calculation. The regulations may also provide for amounts earned from the same employer under two separate contracts to be aggregated for this purpose.

 

Section 167ZZ11 - Liability to make payments

Section 167ZZ11 provides that an employer is liable to pay their employee parental bereavement pay, conditional on that employee having at least 26 weeks’ continuous service with them by the end of the ‘relevant week’, and continuing to be employed by them at the time the child dies.

Regulations must make provision for liability for parental bereavement pay in the event that the employer terminates their employee’s contract to avoid making this payment.

Regulations may also specify conditions where this liability will shift to HM Revenue and Customs.

 

Section 167ZZ12 - Rate and period of pay

Section 167ZZ12 states that the weekly statutory rate of parental bereavement pay will be set in regulations, which may include provisions for different rates for different situations.

Regulations will specify the number of weeks’ entitlement (which must be a minimum of two weeks), and the ‘qualifying period’ within which the pay must be claimed (which must be a minimum of 56 days starting from the child’s death). The employee will be able to choose the week or weeks for which pay is claimed, in accordance with the regulations, and the regulations may allow pay to be claimed for nonconsecutive periods, which must be blocks of a week or weeks.

Statutory parental bereavement pay is not payable if, during the week for which the statutory pay is claimed, the employee works for the employer who is liable to pay the statutory pay. This is regardless of whether or not the work is performed under an existing contract of service, or a new one. It is also not payable if the employee has worked for another employer who is not liable to pay statutory pay, but regulations can prescribe situations where this does not apply for weeks taken as leave.

Regulations may specify further circumstances in which an employer is not required to pay statutory parental bereavement pay.

Employees may choose the start and end point of their statutory pay week. A week is any period of 7 days. If it is necessary to calculate a daily rate of statutory parental bereavement pay (for the purposes of these provisions, or any regulations), this should equal one seventh of the weekly rate.