Introduction

Despite the recent political instability at Stormont, two significant pieces of legislation were introduced regarding employee leave entitlements prior to the dissolution of the Assembly ahead of the elections on 5 May.  They were:

1. Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022; and

1. Domestic Abuse (Safe Leave) Act (Northern Ireland) 2022.

The first piece of legislation introduces a right for parents to take 2 weeks’ paid leave following the death of a child under 18, or if they suffer a stillbirth from 24 weeks of pregnancy. Enabling Regulations under the Parental Bereavement Leave Regulations (Northern Ireland) 2022, and the Statutory Parental Bereavement Pay (General) Regulations (Northern Ireland) 2022 govern the operation of the new right which applies in respect of children who die on or after 6 April 2022.

The legislation also provides for those who suffer a miscarriage to be entitled to paid leave, with the Act stipulating that such rules are to be introduced by 6 April 2026.

This follows the enactment of similar statutory rights in England and Wales (save in respect of miscarriage leave where the government have indicated there are no plans to introduce this right) from 6 April 2020.

The second piece of legislation entitles victims of domestic abuse to no less than 10 days’ paid leave (whether or not taken as a single or continuous period) in each leave year for the purpose of dealing with issues related to domestic abuse. This is known as ‘safe leave.’ Issues relating to domestic abuse are noted as including:

(a)   obtaining legal advice, or pursuing legal proceedings;

(b)   finding alternative accommodation;

(c)   accessing healthcare;

(d)   obtaining welfare support; and

(e)   protecting family members.

The commencement date is yet to be confirmed, but is likely to form part of the agenda for the incoming Minister for the Economy. Northern Ireland is the first UK jurisdiction to pass legislation of this kind which will enable victims of domestic abuse to avail themselves of statutory entitlements without having to consider sick leave, or utilising holiday. It is hoped that the introduction of the legislation will also open up dialogue between employers and employees, so as to facilitate a supportive working environment for employees experiencing domestic abuse.

In light of these legislative developments, in this month’s feature we take a look at what employers need to consider when implementing policies to govern these additional rights.

Bereavement Leave

Many employers will already have policies governing compassionate leave in the event of a family member dying or becoming critically ill. However, prior to the Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022, there was no legal requirement on employers to provide a minimum period of paid time off to employees who experienced parental bereavement. Other leave entitlements, such as time off for dependants (unpaid unless company policy provides differently), may have come into play but, in general terms, there was no standalone right to parental bereavement leave paid or unpaid.

This left employers with discretion on how much leave and pay to provide and in what circumstances, for example, some compassionate leave policies extending only to cover the death or illness of parents, siblings and grandparents only.

The legislation introduced provides a minimum legal entitlement that employers must comply with. Employees who meet the conditions for entitlement and have suffered the death of a child under 18, or a stillbirth after 24 weeks, will have the following rights:

• Two weeks’ leave following a loss. This is a day 1 right i.e. employees do not need to accrue a minimum period of service in order to be entitled to this leave. The leave can be taken consecutively or non-consecutively in chunks, subject to being taken in one-week blocks. Parental bereavement leave may be taken at any time within the period of 56 weeks beginning with the child’s death.

• Subject to having at least 26 weeks’ continuous service and meeting the minimum earnings threshold, entitlement to payment during parental bereavement leave at the lower of either the statutory flat rate (which is £156.66 per week for 2022/23) or 90% of average earnings calculated over a set reference period.

• Protection from detriment or dismissal in connection with exercising their rights to take parental bereavement leave.

• The right to return to the same job they were in before taking parental bereavement leave, save in circumstances where the taking of such leave is combined with another period of statutory leave (for example, maternity, shared parental or adoption leave) in which case, where it is not reasonable practicable for the employee to return to the same role, they may return to another role that is both suitable and appropriate for the employee to do in the circumstances.

Under the Regulations, notice of an employee’s intention to take parental bereavement leave will differ depending on when the employee intends to take it.

• An intention to take parental bereavement leave within 56 days of the date of the child’s death requires the employee to give notice to their employer before they are due to start work on the first day of absence, or as soon as reasonably practicable.

• The notice to be given outside of the 56-day period is at least one week before parental bereavement leave is due to start.

In order to receive statutory parental bereavement pay, notice needs to be given within 28 days beginning with the first day of the period in respect of which payment of statutory bereavement pay is to be made, or as soon as reasonably practicable.

Employees must give notice to their employer of the date of the child’s death, the date they want leave to begin, and its duration (being either one week or two).

Employers are encouraged to review and adapt policies and procedures to provide for and ensure compliance with this new statutory entitlement. Employers may want to consider the following:

• The interaction with other family friendly rights and policies including:

• time off for dependants, which provides a statutory right to employees to unpaid time off to deal with an emergency involving a dependant, which might include taking time off to make funeral arrangements or attend a funeral.

• Whether existing compassionate leave workplace policies make provision for paid time off in the event of a death of a dependant. Employers may wish to review and link existing entitlements under such a policy to entitlements under a new parental bereavement leave policy.

• Maternity/paternity/shared parental leave and pay, where in cases of stillbirth (after 24 weeks of pregnancy) or the death of a child shortly after birth, an employee will retain their full entitlement to maternity and paternity leave and pay. This will be in addition to their entitlement to parental bereavement leave and pay.

• Whether to make any enhancements to parental bereavement pay over and above what is legally required. This could include, providing full pay for the two-week period, offering additional paid or unpaid leave beyond the two-week period, or removing the minimum service requirement so that employees have a right to paid time off from day 1. Note that where there is an existing contractual right to parental bereavement leave, the employee will not have a right to exercise the new statutory right and corresponding contractual right separately, but may take advantage of whichever is more favourable.

• What other support they can offer employees access to, such as counselling services or links/information on other programmes that provide support to bereaved families.

• Training for line managers on the new right to leave following a loss, and what procedure should be followed in order to access the leave. Some employers may wish to offer further training for managers on how to support an employee who has suffered a loss, and / or nominate a specific manager to provide support and guidance for bereaved parents.

Domestic abuse – Safe leave

In Northern Ireland, 1 in 4 women and 1 in 6 men will be victims of domestic abuse in their lifetime. This was predicted to rise due to COVID 19 related impacts, and according to statistics from the Police Service of Northern Ireland, they responded to over 32,000 incidents of domestic abuse in 2021.

In some cases, an employee’s place of work may be the only safe haven they have from domestic abuse so it is important that employers are in a position to provide support to employees who are experiencing domestic abuse, and promote a culture of discussion about the prevention of domestic abuse. One of the ways in which this can be tackled is through the drafting and implementation of a policy. We have listed below some additional considerations for employers.

• When enabling regulations are implemented, employers will be required to provide employees who are victims of domestic violence with no less than 10 days’ paid leave in each leave year to deal with issues arising from domestic violence – note that this is a right to leave for dealing with issues connected with the abuse, rather than a standalone right to leave because of the abuse itself.
• Although the commencement date for this right is not yet known, employers may pro-actively implement provision for this now, rather than reacting to it becoming a formal legal requirement.
• Devise training for line managers and employees, including on how to communicate with and provide support to a staff member who discloses that they are a victim of domestic violence.
• Engage with domestic violence organisations and charities to promote understanding and awareness in the workplace of domestic violence and prevention.
• Sign post employees to groups and charitable organisations that can provide support to victims of domestic abuse.
• Provide a safe working environment for the employee. If home or hybrid working is in operation, consider how this might impact on an employee who makes their manager aware they are being subjected to domestic abuse at home.
• Provide support with work tasks, including in circumstances where the employee may need to take time out, or their performance in work is being impacted; attendance and performance management policies may require adjustment.
• Explore other flexible working arrangements or temporary adjustments to working hours, days and location.

Conclusion

The introduction of both these new pieces of progressive legislation marks an important expansion of employee rights at work, and recognises that those who are experiencing extremely challenging circumstances in their personal lives are entitled to additional, and specific, rights and protections.

Not only does this legislation mean that employees will no longer have to rely on using sick leave or holiday to take much needed time away from work, but it will also likely raise awareness of these issues and provide another pathway for support.

And, although the legislation sets out a minimum framework, there is nothing to stop forward-thinking employers from putting in place additional support at work for employees experiencing a loss, or suffering from domestic abuse.