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Bereavement in the workplace is not a ‘one size fits all’ rule

Date:6 NOV 2019

Dealing with the loss of a loved one, be it a family member, friend or colleague, is a tragic circumstance and employers need to understand that people can be affected in many different ways.

There are many things to take into consideration; the circumstances around the death, how close the staff member was to the deceased, as well as their ability to deal with the grief.

What does the law say regarding compassionate leave?

There is currently no legislation covering compassionate leave from work in the event of bereavement or family illness in the UK.

The Employment Rights Act 1996 gives an employee the right to have “reasonable” time off work to deal with an emergency involving a dependant. 

However, in circumstances involving a bereavement, this statutory right to unpaid “reasonable” leave only applies to enable an employee to deal with logistical matters which arise as a result of a death, such as arranging and attending a funeral. It is not a right to compassionate leave.

How should employers address grief in the workplace?

Employers should have in place a clear bereavement leave policy in their staff handbooks.

The policy should outline what is to be expected from both sides, considering issues such as leave duration, pay and return to work support if possible.

In many cases, employers will still pay staff for their time off during grieving periods. While that is at their discretion, we suggest there should be consistency and that it is outlined in the policy for employees to follow.

Are there any other legal issues to which grief could affect?

Other potential legal issues arise if an employee experiences mental health difficulties as a consequence of bereavement. 

If a member of staff suffers with anxiety or depression as a result, then this could potentially be considered a disability under the Equality Act 2010, which then places employers under a duty to make reasonable adjustments to remove workplace barriers.

The Equality Act also protects employees from discrimination because of their religion or belief.  Many religions have bereavement requirements such as mourning periods and employers cannot penalise them for this.   

Employers need to try and accommodate religious beliefs and customs where reasonable to do so.  This may include an employee requesting a period of leave to travel abroad to attend a funeral.

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Where might issues arise between employee and employer?

In our experience, issues tend to arise when there is a breakdown in communication and an employee has not properly explained to their employer why they may need additional leave following a bereavement or if they are struggling with a return to the workplace.

We would advise that if an employee is open with their employer as to any support that may be needed, the employer is then better placed to provide the support required.

What is the future for dealing with grief and bereavement leave?

New laws set to be introduced in April 2020 will give employed parents a statutory right to two weeks’ leave from work, with pay, following the loss of a child under the age of 18.

Whilst ACAS has provided some guidance for employers on managing bereavement in the workplace, there will still be little legislation covering bereavement or compassionate leave for losses involving other family members, friends or colleagues.

The subject of bereavement leave following the death of a pet was in the headlines earlier this year in the case of a woman who claimed she was dismissed after calling in sick when her family dog died.

We know that emotional connections with pets can be very strong and following the loss of a pet, there is a grieving period, however, ultimately it is at the employer’s discretion as to whether they permit time off in these circumstances.

Any other takeaways?

Workplaces should always try and take a compassionate and flexible approach to bereavement.

Bereavement can be difficult to manage, and we recognise how this can be difficult from an employer’s perspective as they face the absence of a staff member for sometimes an uncertain period.

Handling each case sensitively, opening up dialogue with the employee to find out how they are coping, considering culture and religion as well as offering internal back-to-work support is all a proofing mechanism for employers.