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Do we need to revisit legislation for bereavement leave?

It may come as a surprise that in most cases there’s no legal bar to an employer demanding a newly bereaved employee turns up to work.

Of course, at such a sensitive time all good employers will be sympathetic and focused on doing the right thing, being flexible and accommodating their colleague.

But, as it stands, there is no statutory bereavement leave in the UK, apart from for parents who have suffered the loss of a child.

Stepping into that legislative gap is a group of politicians, charities, businesses, faith leaders and healthcare professionals calling on the government to introduce a minimum of two weeks’ statutory paid leave for all UK employees grieving the loss of a close relative or partner.

Annually that could mean a fair proportion of the workforce.

One organisation pressing for change, bereavement charity Sue Ryder, cites research conducted in October that found, in the previous 12 months, 7.9million employed people — around a quarter of all employees — had experienced a bereavement.

Changing tack

So should there be new legislation entitling employees to time off work for a bereavement. If so, just how much support should employers be obliged to offer?

Obliging unwilling employers to accommodate workers’ grief may seem an attractive proposition, but on closer inspection it’s complex.

For a start, how would it work?

There would need to be a test for qualification. Perhaps a sliding scale of permitted days off based on how closely related you are to whoever has died.

Unfortunately, that ignores how we actually feel about our relatives.

So, what if you feel closer to, for example, a lifelong friend than a closer blood relation?

A one-size-fits-all approach may not adequately protect everyone either.

What about long-term relationships without marriage or a civil partnership? If they’re covered, what’s the test and who decides who is and isn’t protected?

From an employer’s perspective, is it fair to have the same rules apply to a small business with two or three employees, and a large institution more likely to have far greater resources to provide the necessary cover?

If not, how do you protect all employees, no matter the employer?

And ultimately, those already doing the right thing may end up having to follow a more bureaucratic and, possibly, colder approach to bereavement leave.

Existing legal protection for employees

Callous employers can’t necessarily act with impunity, despite the lack of bereavement leave legislation.

For example, a demonstrably uncaring approach to a colleague’s bereavement could lead to a claim for constructive dismissal.

Also, in more extreme cases, disability discrimination could come into play, if there is a pre-existing condition.

That’s not to mention the reputational damage and risk of losing the workforce’s goodwill.

Of course, this isn’t ideal nor is it absolute protection; however, there is a limit on how a well-intentioned legislature can change how we behave.

Irrespective of what the law looks like, chances are good employers will continue to do the right thing. All the while, others who show little or no care for their colleagues will simply carry on as they are — i.e being bad employers.

Kirk Tudhope

Inverness-based partner Kirk Tudhope heads the firm’s employment law team, he regularly represents employers, including private and public sector organisations, at employment tribunals.

Posted, 26 January 2021 by Kirk Tudhope
Categories: Coronavirus | Coronavirus and employment law | Employment | Insights