Considered in Grand Committee
My Lords, I beg to move that the draft regulations laid before the House on 23 January 2020 be approved. These SIs implement a new entitlement to paid leave for employees who lose a child under the age of 18, or whose baby is stillborn.
Every year, there are around 7,500 child deaths, including stillbirths, in Great Britain. While this number is relatively small, each parent of those babies and children will, of course, experience unimaginable grief and sadness following such a tragic event. At the moment, there is no specific right to take time off work to grieve following the loss of a child. The majority of employers respond to these circumstances with great sensitivity and compassion, but sadly there are still a few who do not. These SIs will ensure that there is a statutory minimum provision in place which all working parents can rely on in the event of a child death or stillbirth. They will also establish a clear baseline of support for employers when managing bereavement in the workplace.
Before I go on to explain exactly what each of the two SIs actually does, I thank the noble Lord, Lord Knight of Weymouth, for his excellent stewardship of the Parental Bereavement (Leave and Pay) Act 2018 through this House. It is this Act that gives the Government the powers needed to make these SIs.
The draft Parental Bereavement Leave Regulations 2020 give all employees a right to a minimum of two weeks off work in the event of their child’s death or stillbirth, regardless of how long they have worked for their employer. The Statutory Parental Bereavement Pay (General) Regulations 2020 implement a new statutory payment for parents taking time away from work following their bereavement, subject to the same eligibility criteria as all other statutory family leave payments.
The SIs for which I seek approval today set some of the key policy detail in relation to leave and pay, including how a “bereaved parent” will be defined, how and when the leave and pay can be taken, and the notice and evidence requirements. A “bereaved parent” for the purposes of entitlement to this leave and pay has been defined in broad terms, by reference to the employee’s relationship to the child. The definition reflects the diversity of family structures, taking account of biological and adoptive parents, as well as certain foster carers and kinship carers.
The SIs provide for two weeks of parental bereavement leave per bereaved parent, per child or stillbirth. Individuals will have the choice to take the two weeks consecutively or non-consecutively if they want one week initially and one week further on. The regulations provide a window of 56 weeks, beginning with the date of death, in which the entitlement can be exercised. Bereaved parents will therefore be able to take time off in the immediate aftermath of the death, or at a later point, for example around the first anniversary, or on both occasions.
Consistent with other rights to family-related leave, the employee will be required to give notice to their employer before taking parental bereavement leave, but this need not be in writing. Bereaved parents will be able to notify their employer orally. The notice required for leave will vary depending on when leave is taken in relation to the date of death or stillbirth. A very short notice period is required for leave taken very soon after the death, whereas one week’s notice is required for leave taken later in the 56-week window.
In both cases, the notice required for leave is designed to be minimal and to place as little burden on the employee as possible. In order to claim statutory parental bereavement pay, the employee must provide notice to their employer in writing. This requirement will not create a barrier to a bereaved parent being able to take time off, as the notice for pay can be given some time after the leave has been taken. In no circumstances will an employee be required to produce their child’s death certificate, or stillbirth certificate, in order to access this entitlement. An employer will have no right to ask for this to prove eligibility for this statutory entitlement.
These regulations provide that no evidence is required for exercising the right to leave, but in order to be eligible for pay the employee will be required to provide fairly minimal evidence. This will be a written self-declaration that they meet eligibility conditions as to their relationship with the child, together with confirmation of their name, and the date of the child’s death or stillbirth.
Parental bereavement leave and pay is an employment right, meaning that it will apply to employees only. This is consistent with all other statutory parental leave and pay entitlements. The Government understand the challenges that the self-employed and other “non-employee” parents face. We continue to keep differences in treatment between self-employed and employed people under constant review with respect to parental leave and pay.
In conclusion, this legislation is an important change in the law which will support bereaved parents to take time away from work to grieve, in the tragic event that their child dies or their baby is stillborn. We will also be sending a clear message to employers and providing a helpful framework for supporting an employee in these incredibly difficult circumstances. I commend these regulations to the House.
My Lords, I am grateful to the Minister for his introduction to these regulations, which I support. I am grateful to the department, and the Government, for bringing them forward. Their importance was brought home to me yet again last year when a work colleague at TES—my interests are in the register—lost a child through stillbirth at the moment of delivery. Having been a part of these discussions for nigh on 10 years, I felt better equipped to provide what support I could. I am happy to say that TES acted as a responsible employer, as the vast majority are, in giving Tara the support that she needed.
These regulations bring into effect the law that we brought through and mark the end of a campaign. It may be unfashionable to say so these days, but it is affirming to note that an individual, Lucy Herd, whose son Jack died 10 years ago, was able to campaign and then use the democratic and parliamentary process to effect a change in the law. She did so by securing all-party support of Members in both Houses. As noble Lords know, I first met her, and discussed her campaign, in a TV studio relatively soon after Jack died. She used the system for No. 10 petitions, as well as change.org, a slightly more sophisticated petitioning website to capture more data and more stories, which were really helpful. I introduced her to the then MP for Glasgow Cathcart, Tom Harris, who introduced a 10-minute rule Bill. That was the first time the issue was introduced in Parliament as part of a campaign.
Lucy was then able to contact those who had signed the petition to let them know that that was happening. I was then able to bring it to this House for the first time, with the Children and Families Act 2014. I am delighted to see the noble Viscount, Lord Younger of Leckie, in his place. He was good enough to meet Lucy and me to discuss the issue then and, in the end, we agreed that we would accept his kind offer that ACAS would issue guidance to employers on this and we would see how it went.
After the 2015 general election, when Will Quince was elected as a Member of Parliament, he raised the issue through an unsuccessful Private Member’s Bill. Mr Quince was able to help get it into the Conservative manifesto for the 2017 election, and then Kevin Hollinrake was able to secure a Private Member’s Bill slot and get it through. The goal was then wide open and I was able to put the ball in the back of the net, thanks to support from Front-Benchers, who are all here today.
I am delighted that when the previous Secretary of State announced that these regulations were forthcoming, the department used Lucy as part of the PR; she had another moment with the media to remember Jack and mark the success of her campaign. It was a nice bookend to the whole experience.
It is worth saying that Parliament and democracy can work. When a case is made intelligently, when all the systems are used well and when politicians on all sides in both Houses are willing to listen—that is not necessarily always the case—we can get great things done. This is a significant thing that we are doing.
I want to say one other thing, almost in parentheses. The noble Baroness, Lady Brinton, has a point to make on benefits and the Department for Work and Pensions. I will not steal her thunder, but I am fully supportive of what I think she is about to say. I want to make sure that Ministers who are listening on this issue hear that. With that, I reiterate my support for the regulations and look forward to them being implemented next month.
I thank the Minister for introducing these regulations. I pay tribute to Lucy Herd, who as we have heard has been campaigning for nearly a decade. When I first learned of the campaign, I knew that it would take a while because the issue is not one that affects many families. Not many families or their wider circle of friends will know somebody who has lost a child or are aware of a stillbirth. I give credit not just to Lucy but to the noble Lord, Lord Knight, Will Quince and Kevin Hollinrake for all the work they have done to ensure that this never lost the eye of Ministers. We may all collectively have been a thorn in their flesh, including myself over the past four or five years, but I am delighted that we have now got to the point where these regulations are coming into play.
I note particularly that account has been taken of the definition of “parent”. I was an informal foster parent. I was not a kinship carer but I had parental responsibility for two children after their mother died, so I am very grateful for that. It is because of such funny modern-day family situations that we need a regulation broad enough to recognise that when people are personally involved and have a responsibility, no employer or state system should say that they do not have the right to receive parental bereavement leave.
I am also grateful to the noble Lord, Lord Callanan, who kindly gave me an in to the issue that I want to raise, which I appreciate is not within the remit of BEIS. However, I raised this repeatedly during the passage of the Bill and I want to do so again.
I understand why the decision was made that self-employed parents will not be in receipt of this benefit because they are not in receipt of many other benefits. However, there is a serious inequity for parents, especially those who have stopped working, often for many years, because of the serious medical difficulty that their child has had. They have done so knowing that their child will die. The fact is that under our current system, the day after the child dies, they lose their disability benefit and carer benefit and, shockingly, they have to apply immediately for benefits. I remind the Grand Committee, because I raised this on the Bill, of the words of one parent who wrote:
“The day after, I applied for jobseeker’s allowance, wanting to buy myself a little extra time to grieve before returning to some sort of work, only to be told that because I hadn’t worked in 10 years, I was ineligible, despite the fact that in those 10 years I had worked harder and for many more hours than the average person. The fact that I had saved the Government and the NHS hundreds of thousands of pounds by providing my son with hourly complex medical care counted for nothing. You are told to man up, move on, get a job, pay the bills. Provide for your remaining family.”
That inequity still remains. The noble Lord, Lord Callanan, referred to unemployed parents not being covered but said that the DWP will keep this under review. It will do more than that because the campaign for these parents starts today.
My Lords, I thank the Minister for introducing the regulations, the noble Lord, Lord Knight, and all those he mentioned for introducing the Parental Bereavement (Leave and Pay) Act 2018 which gives the power to make the regulations we are considering today. I shall raise three short points. The first is one that the Minister referred to in his speech, which is that these benefits are available only to employees. This raises a critical issue in labour law and indeed it is one that has beset labour law for centuries: different legal statuses are attached to different kinds of worker. The consequence of having a different status is that one is entitled to different employment rights. This issue will perhaps be dealt with in the forthcoming Employment Bill which I understand will deal with the Matthew Taylor report and contain some measures in relation to that.
The issue is that employees are entitled to more rights than other categories of worker. At one end of the spectrum one has the employee while at the other end one has the genuinely self-employed in business on his or her own account. In between, we have what lawyers call the limb (b) worker; that is to say, a worker under Section 230(3)(b) of the Employment Rights Act 1996, which is a worker under a contract that is not a contract of employment and not working for a client or a customer of a business of that worker. In effect, it is a kind of employee but not quite an employee. The consequence of being a limb (b) worker is that one does not have the same array of employment rights as an employee. There is a fourth category which is what lawyers call the false self-employed, which is somebody who appears to be self-employed because that is how the employer has designated him or her, but in reality and on examination in the courts or tribunals turns out to be an employee or indeed a limb (b) worker.
The point I make to the Minister is that there is really no justification for confining the right to bereavement leave or pay to those who are employees and not extending it to limb (b) workers. I appreciate that these regulations could not confer the benefit on limb (b) workers because the Act itself confines those benefits to employees, but when the Employment Bill comes to be drafted, this is something that could be addressed. There can be no doubt that limb (b) workers will suffer just as much grief and tragedy over the loss of a child as an employee. In his speech, the Minister suggested that the justification for this might be that all parental leave under the Employment Rights Act is confined to employees, but that is not really a justification for excluding limb (b) workers from the benefit of parental bereavement leave or pay.
Secondly, bereavement leave starts on day one of employment, which is a very good thing indeed. The Labour Party takes the view that all employment rights should commence from day one. The problem here is that entitlement to bereavement pay commences only after six months’ continuous employment. One appreciates the rationale for that, but can the distinction be justified? The effect is that the lowest-paid will be unable to afford to take bereavement leave. Three million children are living in poverty in households which contain one or more wage earners, so the people most at risk of not being able to afford to take bereavement leave will be those who are most susceptible to losing the most.
My third and final point is about the complexity of the regulations in relation to the entitlement to bereavement pay, although one understands the reasoning for that. However, there is a category of worker that I do not believe is catered for in the regulations and that I hope the Minister will consider today, or if not, on a later occasion. I refer to people on zero-hours contracts. It may be that the employment Bill will propose to eradicate zero-hours contracts, but if that is not the case, those workers need the entitlement which is conferred on all other workers by these regulations. The problem is that when a zero-hours worker gives notice that he or she would like to take bereavement leave with pay, they find that the employer will say that there is no work for them for that week or two weeks in any event. Sir Michael Marmot’s report last week shows that there is a large number of zero-hours workers. He points out that, 10 years ago, there were 168,000 such workers while today there are some 800,000. Will their entitlement be given further consideration?
My Lords, this has been a useful and helpful debate on an uncontentious set of regulations stemming from a Bill which had to be a Private Member’s Bill but did, it should be said, feature in the 2017 Conservative manifesto—which is why it may have got through with the speed it did. This is in no sense to denigrate it, but from listening to the debate, one might have imagined that it would have been a flagship measure in certain circumstances. It was not to be that way, but that does not take anything away from the fact that this is an important social measure which we welcome.
In a sense the narrative, as rehearsed by my noble friend Lord Knight, reflects the fact that the campaign raised by Lucy Herd has been successful in getting movement in this area. The order before us is about the consequences of that Bill, the consultation that took place and the decisions taken as a result. Despite the points already been made today, we can be pleased that the consultation went well. It seemed to cover exactly the points we were nervous about when saw the Bill through both Houses. The results, although they may not satisfy everybody, give enough of a base for introducing the arrangements that we can welcome them.
Having said that, the points made by the noble Lord, Lord Hendy, are valid. Indeed, I was going to make them myself. We need to settle the question of whether we are going to treat fairly and equitably those who work across the various boundaries described by the noble Lord. I hope that the employment law, when it comes forward, will cover the gig economy and benefits for those who are workers but not employees. There will be no question of the Government being able to rely on the EU regulations in force not permitting them to do this because we will be able to do that ourselves, will we not?
Having been welcoming and supportive of what has been said and noting the points made by noble Lords about issues that perhaps still need to be picked up, I want to mention three myself. First, I welcome the fact that that these regulations have a common commencement date. The Minister will have been advised that I have a thing about this. His predecessor managed a score of one set of SIs starting on a common commencement date and 13 SIs that did not. There was never an adequate answer for that. It just seemed to be the way it happened. I am delighted that the Minister is starting his regime with an appropriate commencement date of 6 April.
Secondly, I read both draft instruments looking for the point picked up in previous discussions in the Grand Committee today about uprating arrangements. I assume that it is automatic, but given the experience of those in the previous debate of there being no statutory requirement to uprate, can the Minister confirm that these payments, if successfully claimed, will be uprated annually? If he cannot confirm that today, perhaps he can write to me.
Thirdly, when the Minister introduced the debate, he estimated that there are 7,000 child deaths a year. However, the Explanatory Memorandum has a figure of 10,200 parents a year eligible for parental bereavement leave, with 9,300 of those eligible for the payment. Can he confirm what the figures actually are? We have just discussed whether we should include in the figures gig economy workers who are not employees, so I think the overall figure is probably bigger. However, as the noble Baroness, Lady Brinton, said, it is still a small number and therefore not one that carries political weight, but we should know what we are talking about. Again, if the figures are not available, I would be happy for the Minister to write to me.
We support these regulations. They have been interpreted with sensitive regard to what is required, with the evidence that came forward supporting what we said at Second Reading. They are therefore welcome.
I thank all noble Lords for their valuable contributions to the debate. I start by reflecting the point made by the noble Lord, Lord Knight of Weymouth. The legislation would not have made it this far were it not for the commitment and support of Lucy Herd, and of Kevin Hollinrake and Will Quince and others in the other place—on both sides of the House, it is fair to say—as well as the work of the noble Lord.
I totally associate myself with the remarks the noble Lord made about the political process. It is often a source of great frustration, even to those of us within government. I am profoundly grateful to have the honour of presenting the regulations, which in no sense were my work, in this place. It shows that occasionally the political process works to the benefit of the people that we are all here to help and it was great to see the support for this measure on both sides of this place. As well as thanking the politicians, I thank all the officials in my department who worked hard to bring these measures before us today.
I hope noble Lords will agree that the Government have carefully considered the needs of bereaved parents, as well as those of employers, in drafting these regulations. I agree with the noble Baroness, Lady Brinton, that the broad definition of a bereaved parent—relying on a parental relationship, rather than biological parentage, to determine eligibility—will ensure that this provision reaches those who need it most. She will get the answer she was expecting to her second point: the policy in this area is not held by my department; it is a matter for the DWP. However, I will ensure that her point is conveyed to that department and that she gets a written reply to her valid concerns.
As I have already set out, the entitlement can be taken flexibly, giving bereaved parents choices about how best to use their time off to support their own, individual grieving process. This is important, as grief rarely follows a predictable path and significant events, even some time after the death, can cause bereaved parents to need time away from work. Wherever possible, these regulations have sought to mirror the existing framework of family-related leave and pay entitlements, which is familiar to most employers. The regulations ensure that an employer has certainty about when their employee will be off, which will enable them to plan ahead. I hope that this will ultimately lead to a more supportive and compassionate response from employers.
These regulations represent a statutory baseline, which should be considered the bare minimum for an employee who has suffered such a tragic loss. Many of us who are parents cannot comprehend the pain that someone in such circumstances will go through. As always, the Government encourage all employers to go further than the statutory minima where they are able to, and to act compassionately and considerately towards their staff. I am happy to say that many employers already provide exemplary bereavement support to their staff. However, there are still a small minority who do not, so I hope that this new legislation will not only ensure a minimum protection for all employees, but lead to better workplace support for bereavement across the board.
ACAS has produced guidance with Cruse, the bereavement specialists, for employers on managing bereavement in the workplace that includes specific advice relating to a parent losing a child of any age. We encourage employers to take notice of the ACAS guidance and to go beyond this statutory minimum in their own workplace policy where possible. I understand the concerns of the noble Lord, Lord Hendy, about the lack of provision for bereaved parents who are self-employed, or who are “workers” as opposed to employees. The Government understand the challenges that the self-employed and other non-employee parents face. We will continue to keep differences in treatment between self-employed and employed people under review with respect to parental leave and pay.
I am happy to reassure the noble Lord, Lord Stevenson, that this payment will be uprated annually, in line with other family payments. Regarding the numbers—we had 7,500 and he quoted 10,500—every child’s death will have a number of parents associated with it. The number in the impact assessment is not exactly twice the number of deaths; the 10,500 takes account of many things, including the number of parents who are not employees. If it would be helpful to him, I can write to him to explain that in more detail.
I hope I have answered all the questions. I commend these draft regulations to the House.