Supporting staff when they need it most

Swiss-American psychiatrist, theorist of the five stages of grief, and pioneer of palliative care, Dr Elisabeth Kübler-Ross, once explained that you never “get over” losing a loved one; it forever forms a part of you. It is profoundly and irrevocably changing, and is as personal to you as your fingerprint.

Understandably, for Government and policy-makers, legislating in this area is a particularly complex issue. The needs of someone who has lost a parent will not be the same as those of someone who has lost a spouse or a child. Yet, even on a generous interpretation of the law, the protection for grieving staff in the UK is severely lacking.

Under the current legislation, employees (note: not workers) have the right to reasonable time off if a “dependant” dies. A “dependant” could be the individual’s spouse or partner, child, parent, a person who lives in their household or a person who relies on them (such as an elderly neighbour). This type of leave is unpaid, and what amounts to “reasonable” time off is not prescribed; it is intended to afford the employee time to deal with unexpected issues and emergencies involving the deceased, such as arranging or attending their funeral.

Additionally, parental bereavement leave (or “Jack’s Law”) enables an employee (again, not a worker) whose child is stillborn after 24 weeks of pregnancy, where an abortion takes place after 24 weeks of pregnancy, or whose child dies before they reach their 18^th birthday, to take up to 2 weeks’ leave within 56 weeks of their child’s death. Parents in these circumstances will be entitled to statutory parental bereavement pay (if eligible). They will also be entitled to take any statutory maternity, paternity, adoption or shared parental leave that they were entitled to, for that child.

If an employee is on adoption leave and their newly adopted child dies, their leave will end 8 weeks after the end of the week in which their child died, as will their entitlement to statutory adoption pay.

That is the extent of the UK’s legislative protection for staff dealing with loss.

Some changes to compassionate and bereavement leave are on the horizon, which is cause for optimism.

Under the Neonatal Care (Leave and Pay) Act 2023, which is expected to come into force in April 2025, parents will be able to take up to 12 weeks paid neonatal care leave, in addition to other leave entitlements such as maternity, paternity and shared parental leave, if their baby is admitted to hospital up to the age of 28 days and has a continuous stay in hospital of 7 days or more. Neonatal care leave will need to be taken within the first 68 weeks of the baby’s birth.

In addition to these changes, under the Employment Rights Bill a new right to unpaid bereavement leave is being introduced. Although secondary legislation will be required to bring the changes into effect, which is unlikely to happen until 2026, all employees will be entitled to take a minimum period of at least one week’s leave following the death of a loved one (or two weeks’ leave following the death of a child). Such leave will need to be taken within 56 days of the person’s death. Regulations are required to clarify the conditions for the relationship with the deceased, but this new type of leave is intended to serve as a baseline level of protection for a wider group of grieving staff.

These are important steps in the right direction. Yet, there are still fundamental issues with the legislation which need to be addressed.

There are no changes in the pipeline to improve the compassionate and bereavement leave rights already in place (for example, by extending those rights to workers or enshrining a period of paid leave from day one of employment).

Further, the shortcomings with the current system of compassionate and bereavement leave are being replicated in these new rights. Neonatal care leave, for example, will be a Day One right, but pay will not be. As with the current leave provisions in place, the new legislation will end up financially penalising some people at a time when they need support the most. This undermines the stated intention of neonatal care leave to “take one concern off the minds of new parents”. Whilst parents may be able to take up to 12 weeks off work to be with their incredibly sick baby, if they cannot pay their mortgage or rent during that time, the cost of childcare for other children, or general living expenses because that leave is unpaid (unless they meet the eligibility criteria for pay), they are not going to be able to afford to take it. 

As a result, some people may resort to using their annual leave entitlement during difficult times to: (a) take time off when they need it; and (b) avoid the financial consequences of the statutory entitlements described above. This, clearly, is not the purpose of annual leave (which is intended to be for rest and recovery) and drives a coach horses through the Working Time Regulations’ intention to “protect the health, safety and wellbeing” of staff.

According to the UK Commission on Bereavement’s (UKBC) 2022/2023 study, a third of bereaved respondents felt either completely unsupported or not supported enough by their employer following the death of a loved one. Barriers to good support included a lack of awareness and understanding of grief and how to help those who are suffering, poor communication and information sharing, and inflexible systems.

It is clear that whilst the proposed and upcoming changes to statutory compassionate and bereavement entitlements will make a significant impact on a much wider group of people—which should be applauded—there are still shortcomings which could have unintended consequences.

So, what can employers do to best support those who are grieving or have experienced a loss and what do employers need to consider?

1. It is advisable to have a compassionate and bereavement leave policy in place that deals with the amount of time off employees can take, in what circumstances, and whether the leave will be paid. This will provide certainty and consistency for staff and will send a message that the employer operates a genuinely supportive working environment. The legislation described above provides a baseline, but where possible, employers could (and arguably should) consider going further.
2. Provide training to managers so that they can deal with staff bereavement and other traumatic situations (such as family illness) sensitively. Employers may also wish to offer grieving staff an employee counselling service.
3. In a recent National Council for Palliative Care report, more than half of the employees asked said they would consider leaving their job if their employer did not support them adequately at a critical time. Failing to demonstrate commitment to employees as individuals may damage working relations and morale, which could in turn affect staff retention and loyalty.
4. If an employee is not supported or feels under pressure to return to work before they are ready, they may struggle to cope. This could result in them being signed off work by their doctor. In such cases, the drive to get them back into work is self-defeating both financially (the employer will have to pay statutory sick pay thereby negating the cost “saved” by refusing the employee paid compassionate/bereavement leave) and from a resourcing perspective. It could also expose an employer to the risk of claims for stress, personal injury, discrimination or harassment.
5. There are risk-management issues to consider if a grieving employee (who is not sleeping well, is finding it difficult to concentrate, or is struggling emotionally) is in work, attempting to perform their day-to-day role. They are unlikely to be productive and may make costly mistakes.
6. Consider the optics. If an employee is grieving and struggling to cope, and insufficient (or no) support is being provided, that individual’s colleagues and clients will likely become aware of it in time.

Most employers would be sensible to (and, indeed, many do) offer grieving staff or staff going through trauma significantly more in the way of additional support such as more time off, access to counselling services, maintaining pay and benefits, or keeping in touch (as appropriate) during any periods of absence. It is impossible to be prescriptive about human nature and sensitivity needs to be balanced with operational and commercial requirements. Employers would be well advised, therefore, to be consistent and fair, but flexible where possible bearing in mind the realities and personal tragedies some of their staff may be living through.

Further information

If you have any questions, please contact Francesca Lopez in our Employment team.

About the author

Francesca is a skilled employment lawyer, with extensive experience acting on both sides of the negotiating table. From recruitment to termination, she handles the full spectrum of employment law matters, advising clients in a variety of sectors including but not limited to legal, financial and other professional services, technology, education, medicine, aviation and defence. She has a particular interest in acting for regulated clients.