New Zealand approves paid leave after miscarriage. What’s the position here?
Trigger Warning: please note that this article deals with sensitive topics which may be upsetting to some readers.
New legislation in New Zealand
It’s been widely reported in UK media that New Zealand is allegedly the second country in the world to pass legislation giving mothers and their partners the right to paid leave after a miscarriage or still birth. We understand at the time of writing, that this bereavement leave allowance gives employees three days’ leave when pregnancy ends with a stillbirth.
Statutory right to parental bereavement leave in England, Wales & Scotland
What rights do employees have in similar situations here?
Don’t forget that in Great Britain (England, Wales and Scotland) new laws were passed last year that now provide a statutory right to parental bereavement leave and pay in respect of children who die on or after 6th April 2020. A brief summary of the key provisions is set out below:
On the introduction of these regulations, it was argued that these provisions do not go far enough to support those who suffer a miscarriage or stillbirth earlier than 24 weeks. The introduction of the special allowance in New Zealand is arguably a welcome start to supporting those who face such a tragedy in New Zealand, but can it ever really be said that either 3 days (there) or two weeks (here) offers enough support to employees after the loss of a child – in any circumstances even if they are eligible? Clearly not, but arguably this is not the intention of the regulations and any support that is offered is a step in the right direction to offer affordable support during such difficult personal circumstances.
What rights do I have at work when a friend or family member dies?:
There is no general right to compassionate leave at work (paid or otherwise) in the UK, however many employers do recognise the upset and difficulties placed on staff in the event of a death, and seek to support them by offering compassionate time off (sometimes paid) in the event that a close relative dies or becomes critically ill.
The Acas guide on “Managing Bereavement in the workplace: a good practice guide” gives helpful practical tips on issues beyond just granting time off but this has not been updated since the introduction of the Parental Bereavement Leave Regulations.
Time off for dependants:
Otherwise, all employees have the right to take reasonable unpaid “Time off for Dependants”. This statutory right:
- Applies to employees. Workers and the self-employed are excluded.
- Applies to all employees, irrespective of their length of service, or whether they work full-time or part-time or are employed on a permanent, temporary or fixed-term basis.
- Applies to both male and female employees. There may be occasions where both parents wish to take time off to care for a dependant.
- Does not apply to the armed forces, members of the police force and certain fishermen.
- A dependant is defined as: a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees).
This legislation provides that an employee is entitled to take reasonable time off where it is necessary:
- To provide assistance if a dependant falls ill, gives birth, is injured or assaulted.*
- To make care arrangements for the provision of care for a dependant who is ill or injured.*
- In consequence of the death of a dependant – however note that this right is limited to time off to take action that is necessary as a consequence of a dependant’s death. Case law has confirmed that this only enables an employee to deal with the logistical matters which arise as a result of a death – such as arranging and attending a funeral and, where appropriate, applying for probate and meeting probate officers. The courts have emphasised that this is not a right to compassionate leave.
- To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.*
- To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.
* in these instances, the definition of dependant is slightly wider and includes those who reasonably rely on the employee for such assistance or to make those arrangements. Although this hasn’t been tested, this is thought to include employees who have the primary caring responsibilities, or where the employee is the only person who can help or is closest at hand at the time of the incident (i.e. fall).
But how far does this go? An employee only has a statutory right to take time off for dependants if the situation falls within one of those categories listed above. Other events, such as a fire or car breakdown remain an issue to be dealt with internally under a company policy, contractual benefit or casual/flexible arrangement between the employee and their employer.
Also remember that the statutory time off for dependants regime does not apply to planned time off to care for dependants; for example to take them to a planned medical/dentist appointment etc, it must be for unplanned emergencies.
Specialist employment law advice
If you’re supporting a member of staff with a family emergency or bereavement and you’d like to discuss any of these topics, please don’t hesitate to contact us. Similarly, if your business is looking to implement a compassionate leave policy (whether paid or unpaid) we’d be happy to help with the drafting of this policy. You can contact us by calling 0117 906 9400 or email firstname.lastname@example.org