Knowledge

The Minister for Social Security in Jersey has added to Jersey's already impressive statutory parental leave regime.  On 18 March 2024, the Employment (Amendment No.14) (Jersey) Law 2023 (the "2023 Law") came into effect and now affords eligible employees and self-employed persons a day one entitlement to unpaid parental bereavement leave ("Bereavement Leave") in the unfortunate event of the death of a child.

The 2023 Law amends various statutes, but for the purposes of this briefing, we will focus on the amendments to the Employment (Jersey) Law 2003, to provide you with an executive overview of these positive additions to Jersey's existing parental leave regime.

What is Bereavement Leave?

Bereavement Leave is a day one statutory entitlement to two weeks of unpaid leave for eligible employees and self- employed persons in the event of the death of:

• a child, if they die under the age of 18; or
• a child who is stillborn after 24 weeks of pregnancy.

Who is entitled to Bereavement Leave?

The following employees or self-employed persons are entitled to Bereavement Leave:

• the mother of the child;
• the father of the child;
• an adopted parent of the child;
• a surrogate parent of the child; or
• a person married to, or in a civil partnership with, any of the persons mentioned above, provided the person had or expected to have responsibility for the upbringing of the child.

(together "eligible persons").

When and how should Bereavement Leave be taken?

Eligible persons are entitled to two weeks of unpaid Bereavement Leave from either the date of the death of a child or, in the event of stillbirth, the date of the child's birth.

Bereavement Leave can be taken without notice and up to and including 56 weeks after the death or birth (in the event of stillbirth) of a child (the "eligible period"). 

Eligible persons may choose to take all their Bereavement Leave as a whole or split it into no more than three blocks of leave within the eligible period. (e.g. an employee may take part of their Bereavement Leave immediately following the event and the remainder of their Bereavement Leave later within the eligible period).

If taken in no more than three blocks and an employee changes employers within the eligible period, the employee is still entitled to take the balance of any Bereavement Leave due to them whilst employed by the new employer.

An employee's entitlement to Bereavement Leave does not affect their entitlement to parental leave and/or any additional contractual entitlement to leave following the birth or adoption of a child.

Is Bereavement Leave paid?

Eligible persons are entitled, at least for the moment, to two weeks of unpaid Bereavement Leave. It is of course up to employers to offer paid Bereavement Leave and if any internal bereavement policies provide such, this should be honoured. Bereavement policies should clearly set out the amount of any contractual bereavement pay and the period for which it is payable.

The Government of Jersey is intending to implement a statutory bereavement pay system to compensate eligible persons for loss of income during any period of statutory Bereavement Leave. It is expected that further information about the rate of pay and application process will be provided in due course.

How does Bereavement Leave affect an employee's terms and conditions of employment?

The additions introduced by the 2023 Law largely mirror the rights and obligations that extend to employees on parental leave.

In summary, the specific additions applicable to Bereavement Leave are as follows:

• eligible employees should not be made to work during any period of Bereavement Leave;
• all terms and conditions of employment, except those relating to remuneration (including bonuses and commission attributable during any period of Bereavement Leave), which the employee would have received had they been working, remain the same during any period of Bereavement Leave (e.g. an employee's right to accrue holiday);
• eligible employees have the right not to suffer detriment after any period of Bereavement Leave;
• eligible employees have the right not to be dismissed for the fact that they have sought to take or have taken Bereavement Leave;
• eligible employees remain bound by their contractual obligations during any period of Bereavement Leave (e.g. duty of confidentiality);
• eligible employees have the right to return to the job they held immediately before any period of Bereavement Leave (e.g. an employee's seniority and right to benefits should not be affected by any period of Bereavement Leave); and

any contractual right to time off for Bereavement Leave cannot be exercised at the same time as any statutory entitlement to Bereavement Leave and it is up to an employee to choose the more favourable of the two.

What recourse does an aggrieved employee have?

Eligible employees may refer any contraventions of the additions introduced by the 2023 Law to the Employment Tribunal and are required to do so within eight weeks of the relevant date (which will vary and be calculated by reference to the particular provision being breached).

Concluding remarks

Whilst there is no way to compensate for the loss of a child, this addition at least allows an employee the time off to grieve in private without the fear of ramifications in the workplace or losing job security, and will hopefully offer grieving parents some respite in unfortunate circumstances. Employers are encouraged to conduct themselves appropriately when managing matters associated with Bereavement Leave and to ensure that they respect the sensitivity and confidentiality of the matter.