Keep the law away from grief

For those of us who are self-employed or run businesses, time off for grief carries a cost. It may be loss of earnings or simply opportunity cost. But either way the emotional loss of a loved one also carries financial loss for self-employed people and business leaders. In many cases employees too suffer financial loss if they take leave that is not paid.

Now the National Council for Palliative Care (NCPC)  is urging the government to make bereavement leave statutory, i.e. paid, for employees. It is an area where the law should fear to tread, in my opinion.

The current law

Employees are entitled to emergency leave for dependants, but this does not necessarily cover parents, siblings or even non-dependant children. Such leave need not be paid and can be limited to a few days. Many individuals need longer and in those cases a visit to the GP will usually result in a sick note. But for those dependent on SSP three days without pay and subsequent SSP rates can cause genuine financial difficulties at a time when there is other emotional trauma. Indeed those who would be reduced to SSP rates are often those closest to the breadline. So from a moral standpoint the NCPC does have an argument.

Reality

Employers in general do allow a few days of paid bereavement or compassionate leave and some are more generous. Such leave invariably extends to the wider family – although an HR manager I know reduced this width on discovering that one employee had had eight separate periods of leave all attributed to the deaths of grandparents!

The risk of employee-abuse apart, there are binding reasons for an employer to be fair and reasonable. Other employees will judge the employer on the employer’s treatment of grieving employees. Indeed the study citied by the NCPC suggested more than 50% of employees would consider leaving an employer who showed lack of compassion. While few employees can exercise such luxury, we live in a world of facebook, Twitter and Glassdoor. Now grief over lack of compassion can be shared virally. If employers want to attract good employees they need to be good employers. And, in our experience, the majority of employers do want to be seen as good employers.

The complexity

We all experience grief in different ways. Loss can affect us differently at different times. Is the law going to put a value on the loss of a parent against the loss of a spouse, or the loss of a child? The employer is in a far better position to make a judgement for an individual. I once allowed several days bereavement leave for the death of an employee’s uncle. It was the employee’s last surviving relative and it necessitated a significant journey for him to attend the funeral. In other cases a child may be raised by an aunt or grandparent. Employees are individuals.

Just reflect, for a moment, that statutory holidays for employees seemed a simple concept when first proposed. Yet we now receive more enquiries over holiday entitlements, arising from confusion, than over any other single employment issue. What has happened is that real life circumstances (e.g. sickness while on holiday and vice versa) have needed to be interpreted by courts here and in Europe. The result is a number of complex situations that the average employer finds extremely difficult to follow.

Of course we encourage employers to have compassionate leave policies so they can be seen to be as fair and consistent as realistically practical. We guide them over the need to be compassionate while mindful of precedent risks. But managers, while feeling compassionate, do not always feel free to react appropriately. Flexible working is an option that is rarely considered. And with a third of employees feeling their employer was not compassionate enough there is certainly room for improvement.

But applying the law could prove to be as complex and confusing as statutory holidays and would have an added emotional component. Legislating over  such a sensitive issue as bereavement could produce similar confusion and, in the end, actually prove to be counter productive and highly insensitive.

Posted by Malcolm Martin

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