Andy Burnham's bereavement leave plan creates an uncomfortable hierarchy of grief

For too long, employees experiencing the death of a close family member or a miscarriage have had no legal right to take time off work. While many employers have offered leave in those circumstances, this is certainly not universal. From April 2027, workers will be entitled to up to two weeks' leave following the death of a spouse, partner, parent, adult child, sibling or certain equivalent family relationships. The new right will also cover pregnancy loss before 24 weeks and can be taken flexibly within a 56-week period. Employees will not be required to provide evidence of their loss.

Importantly, though, the new right is to unpaid leave, with employers left to determine what pay (if any) should be offered to grieving employees. As things stand, Parental Bereavement Leave, available where a child under 18 dies or where there is a stillbirth after 24 weeks, remains paid, albeit at a minimal statutory rate. The result is a curious hierarchy of grief.

The introduction of paid leave for someone who suffers the devastating loss of a child was an important and humane step in the right direction. But once Parliament has accepted the principle that bereavement deserves statutory workplace protection, this raises a difficult question: How can employers draw distinctions between different losses for different employees?

Of course, a line has to be drawn somewhere. Employment law is full of qualifying criteria and bright-line rules and, in practice, it could not work any other way. But the practical risk of drawing the line here is the creation of a two-tier bereavement system. Whether your pregnancy loss leave is paid or not could depend on a difference of a matter of days.

For employees working for employers with generous benefits packages, the new legislation may change very little. Many organisations already provide paid bereavement leave and are likely to continue doing so. Indeed, some employers already offer significantly more generous support than the statutory minimum, recognising the impact that grief has on individuals.

For others, however, the statutory scheme may become the default position. Employees may technically have a right to time off, but they will have no right to pay while taking it. At a time when many households face financial pressure, an unpaid entitlement is often one that people cannot realistically afford to use. Telling workers dealing with a period of distress and upheaval that they are free to take time off, provided they can afford not to be paid, may feel like a partial solution. Employees on lower incomes may end up feeling compelled to return to work sooner than they would wish notwithstanding the new statutory right.

The Government deserves credit for recognising that workers should not have to rely entirely on managerial discretion when they suffer a bereavement. Ultimately, the new right will help thousands of people at some of the most difficult moments of their lives. However, the new regime should be treated as a minimum safety net rather than a gold standard. In an ideal world, employers would view April 2027 as an opportunity not only to update their policies, but also to review whether their wider approach to bereavement and pregnancy loss genuinely reflects the support employees need during the most difficult periods of their lives.

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Beth Hale is Partner and General Counsel at CM Murray LLP.

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