The Parental Bereavement Leave (No. 2) Regulations (Northern Ireland) 2023

Made: 28th September 2023

Coming into operation: 29th September 2023

The Department for the Economy makes the following Regulations in exercise of the powers conferred by Articles 70C(1) and (2)[^f00001], 112EA(1) to (8), 112EB(1), (4) and (5), 112EC, 112ED[^f00002], 131[^f00003] and 251(6) of the Employment Rights (Northern Ireland) Order 1996[^f00004].

PART 1 — GENERAL

Citation and commencement

1

These Regulations may be cited as the Parental Bereavement Leave (No. 2) Regulations (Northern Ireland) 2023 and shall come into operation on 29th September 2023.

Application

2

These Regulations apply in respect of children who die on or after 6th April 2022 and to cases where a woman experiences a miscarriage and becomes aware of it on or after 6th April 2026.

Interpretation

3

• (1) In these Regulations—

• “the 1996 Order” means the Employment Rights (Northern Ireland) Order 1996;

• “adopter” means a person who intends to adopt C and to whom the Intercountry Adoption (Hague Convention) Regulations (Northern Ireland) 2003[^f00005] apply;

• “approved foster parent” means a person approved as a foster parent by the authority under regulation 3 of the Foster Placement (Children) Regulations (Northern Ireland) 1996[^f00006];

• “approved prospective adopter” means a person considered by the authority by virtue of the Adoption Agencies Regulations (Northern Ireland) 1989[^f00007] to be a person suitable to adopt a child;

• “authority” has the same meaning as in the Children (Northern Ireland) Order 1995[^f00008];

• “C” means the child in relation to whom an entitlement to parental bereavement leave arises;

• “the first day of bereavement” means—the date of C’s death, orthe date that S experienced the miscarriage or became aware that she had experienced a miscarriage.

• “intended parent” means a person who— but for the occurrence of a miscarriage, would have intended to meet the requirements of sub-paragraphs (a) and (b); has applied, or intended to apply during the period of 6 months beginning with the day of C’s birth—with another person for an order under section 54 (parental orders: two applicants) of the Human Fertilisation and Embryology Act 2008[^f00009] in respect of C; oras the sole applicant for an order under section 54A(parental orders: one applicant) of that Act[^f00010] in respect of C; andexpected the court to make such an order on that application in respect of C;

• “official notification” means written notification, issued by or on behalf of the relevant domestic authority, that it is prepared to issue a certificate to the overseas authority concerned with the adoption of C, or has issued a certificate and sent it to that authority, confirming, in either case, that the adopter is eligible to adopt and has been assessed and approved as being a suitable adoptive parent;

• “parental bereavement leave” means leave under regulation 4;

• “placed for adoption” means—placed for adoption by virtue of regulation 12 of the Adoption Agencies Regulations (Northern Ireland) 1989[^f00011];placed by an authority with a person who is an approved foster parent who is also an approved prospective adopter where the authority—is considering adoption for C, oris satisfied that adoption is in the best interests of C,and is considering whether that person would be a suitable adoptive parent for C;placed for adoption under the Adoption and Children Act 2002[^f00012] or the Adoption and Children (Scotland) Act 2007[^f00013];placed in accordance with section 22C of the Children Act 1989[^f00014] (ways in which looked after children are to be accommodated and maintained) with a local authority foster parent who is also a prospective adopter, following consideration in accordance with subsection (9B)(c) of that section[^f00015]; orplaced in accordance with section 81 of the Social Services and Well-being (Wales) Act 2014[^f00016] with a prospective adopter, following consideration in accordance with subsection (10) of that section;

• “prospective adopter” means a person who has been approved as suitable to adopt a child and has been notified of that decision in accordance with regulation 30B(4) of the Adoption Agencies Regulations 2005[^f00017] or regulation 28(3) of the Adoption Agencies (Wales) Regulations 2005[^f00018];

• “relevant domestic authority” means—in the case of an adopter to whom the Intercountry Adoption (Hague Convention) Regulations (Northern Ireland) 2003 apply, the Department of Health[^f00019]; andin any other case, the Central Authority designated in accordance with Article 6 of the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993;

• “S” means a woman who has experienced a miscarriage;

• “statutory leave” means leave provided for in Part 9 of the 1996 Order.

• (2) The Interpretation Act (Northern Ireland) 1954[^f00020] applies to these Regulations as it applies to an Act of the Assembly (but see regulations 16 to 21); and the Interpretation Act 1978[^f00021] shall not apply.

PART 2 — ENTITLEMENT TO PARENTAL BEREAVEMENT LEAVE

Entitlement to parental bereavement leave

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• (1) An employee is entitled to be absent from work to take parental bereavement leave if he or she—

• (a) satisfies one of the conditions specified in paragraph (2); and

• (b) complies with the notice requirements in regulation 6.

• (2) The conditions referred to in paragraph (1) are that, at the date of C’s death, the employee is—

• (a) C’s parent;

• (b) C’s natural parent and named in an order made pursuant to section 51A(2)(a) of the Adoption and Children Act 2002[^f00022] or section 11(3)(aa) of the Children (Scotland) Act 1995[^f00023], provided that such an order has not subsequently been revoked or discharged;

• (c) a person with whom C has been placed for adoption, for so long as that placement has not been disrupted, as mentioned in paragraph (3);

• (d) an adopter—

• (i) with whom C was living; and

• (ii) who has received official notification in respect of C;

• (e) an intended parent of C;

• (f) C’s parent in fact; or

• (g) the partner of P.

• (3) For the purposes of paragraph (2)(c), a placement has been disrupted—

• (a) when C has been returned to the agency under Article 31(3) of the Adoption (Northern Ireland) Order 1987[^f00024];

• (b) when C has been returned under sections 31 to 35 of the Adoption and Children Act 2002[^f00025];

• (c) in Scotland, when C has been returned to the adoption agency, adoption society or nominated person in accordance with section 25(6) of the Adoption and Children (Scotland) Act 2007; or

• (d) when C’s placement—

• (i) with a local authority foster parent who is also a prospective adopter in accordance with section 22C of the Children Act 1989 following consideration in accordance with subsection (9B)(c) of that section[^f00026]; or

• (ii) with a prospective adopter in accordance with section 81 of the Social Services and Well-being (Wales) Act 2014;

has been terminated.

• (4) Subject to paragraph (6), a person is C’s parent in fact if that person, for a continuous period of at least four weeks ending with the day on which C dies—

• (a) lived with C in the person’s own home; and

• (b) had day to day responsibility for C’s care.

• (5) For the purposes of the continuous period mentioned in paragraph (4), no account is to be taken of any absences of a temporary or intermittent nature.

• (6) A person is not to be regarded as C’s parent in fact if—

• (a) C is in the care of that person in premises in which any parent of C’s, or any person who is not a parent of C’s but who has responsibility for C, is living; or

• (b) that person was or is entitled to receive remuneration, whether by way of wages or otherwise, in respect of the care of C.

• (7) A person has responsibility for C, for the purposes of paragraph (6)(a), if the person has parental responsibility within the meaning of Article 6 of the Children (Northern Ireland) Order 1995[^f00027].

• (8) For the purposes of paragraph (6)(b), the following payments are not to be regarded as remuneration—

• (a) any fostering fee or allowance paid to an approved foster parent;

• (b) payments wholly or mainly intended to reimburse the person for expenses which arise from, or are expected to arise from, the person’s care of C;

• (c) amounts received pursuant to the terms of a will, trust or similar instrument which makes provision in respect of C’s care.

• (9) In this regulation—

• (a) “P” means any person who satisfies one of the conditions in paragraph (2)(a) to (f);

• (b) “partner” means a person (whether of a different sex or the same sex) who lives with C and P in an enduring family relationship but is not a relative of P of a kind specified in sub-paragraph (c);

• (c) the relatives of P referred to in sub-paragraph (b) are P’s parent, grandparent, sister, brother, aunt or uncle;

• (d) references to relationships in sub-paragraph (c)—

• (i) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption; and

• (ii) include the relationship of a child with his or her adoptive, or former adoptive, parents;

but do not include any other adoptive relationships.

• (10) Where an employee is eligible to take parental bereavement leave under this regulation as a result of the death of more than one child, the employee is entitled to parental bereavement leave in respect of each child.

Options in respect of parental bereavement leave

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• (1) The minimum period of parental bereavement leave which may be taken by an employee is one week.

• (2) An employee may choose to take either one or two weeks’ parental bereavement leave.

• (3) Where an employee chooses to take two weeks’ parental bereavement leave, the weeks need not be consecutive.

• (4) Parental bereavement leave may be taken at any time within the period of 56 weeks beginning with the first day of bereavement .

• (5) Paragraphs (1), (2) and (3) of this regulation are subject to regulation 8.

Notice requirements for parental bereavement leave

6

• (1) An employee must give his or her employer notice of his or her intention to take any absence from work as parental bereavement leave specifying—

• (a) the first day of bereavement ;

• (b) the date on which the employee chooses any period of absence to begin; and

• (c) whether the employee intends that period of absence to be a period of one or two weeks’ parental bereavement leave.

• (2) Where any week which an employee intends to be treated as parental bereavement leave begins within Period A, notice provided for in paragraph (1) must be given to the employer—

• (a) before the employee is due to start work on the employee’s first day of absence from work in that week; or

• (b) in a case where it is not reasonably practicable for the employee to give notice in accordance with sub-paragraph (a), as soon as is reasonably practicable.

• (3) Where any week which an employee intends to be treated as parental bereavement leave begins within Period B, notice provided for in paragraph (1) must be given to the employer at least one week before the start of that week.

• (4) Where an employee gives notice in accordance with paragraph (2) or (3) to take a period of parental bereavement leave which includes a week which begins—

• (a) in Period A, the employee may cancel that week’s parental bereavement leave by giving notice to the employer no later than the time on the first day of that week at which the employee would have been due to start work if the employee was not taking parental bereavement leave;

• (b) in Period B, the employee may cancel that week’s parental bereavement leave by giving notice to the employer at least one week before the start of that week.

• (5) An employee may not cancel any week of parental bereavement leave which has already commenced.

• (6) In this regulation—

• “Period A” means the period of 56 days beginning with the first day of bereavement ;

• “Period B” means the period beginning the day after the end of Period A and ending with the end of the period specified in regulation 5(4).

Commencement of parental bereavement leave

7

• (1) An employee’s period of parental bereavement leave begins on the date specified in his or her notice under regulation 6(1) except where—

• (a) he or she has cancelled the week or weeks of parental bereavement leave specified in that notice in accordance with regulation 6(4); or

• (b) paragraph (2) applies.

• (2) In a case where—

• (a) the employee notifies his or her employer of the employee’s intention to begin his or her parental bereavement leave on the same day as notice is given to his or her employer in accordance with regulation 6(2); and

• (b) he or she is already at work on that day;

the employee’s period of parental bereavement leave begins on the day after that day.

Commencement of other statutory leave

8

• (1) This regulation applies where an employee’s period of parental bereavement leave has commenced in accordance with regulation 7 and, before that period is due to end, the employee begins another period of statutory leave.

• (2) Where paragraph (1) applies, the period of parental bereavement leave ends immediately before the start of the other period of statutory leave and any remaining entitlement to parental bereavement leave—

• (a) may be taken after the end of the other period of statutory leave (but within the period specified in regulation 5(4)); and

• (b) must be taken in a single consecutive period.

• (3) Where paragraph (1) applies, and the employee chooses, in accordance with paragraph (2)(a), to take his or her remaining entitlement to parental bereavement leave after the end of the other period of statutory leave, he or she must give a separate notice in respect of that remaining entitlement, in accordance with regulation 6 (other than the requirement under regulation 6(1)(c)).

• (4) Where any remaining entitlement to parental bereavement leave includes part of a week as a result of paragraph (2), the portion of the remaining entitlement comprising part of a week will be deemed to be a week for the purposes of the requirements set out in regulation 6(1) to (5).

PART 3 — TAKING PARENTAL BEREAVEMENT LEAVE

Application of terms and conditions during parental bereavement leave

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• (1) An employee who takes parental bereavement leave, is, during any period of leave—

• (a) entitled to the benefit of all of the terms and conditions of employment which would have applied if the employee had not been absent; and

• (b) bound by any obligations arising under those terms and conditions, subject only to the exception in Article 112EB(1)(b) of the 1996 Order[^f00028].

• (2) In paragraph (1)(a), “terms and conditions of employment” has the meaning given by Article 112EB(2) of the 1996 Order, and accordingly does not include terms and conditions about remuneration.

• (3) For the purposes of Article 112EB of the 1996 Order, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

• (4) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by paragraph 7 of Schedule 5 to the Social Security (Northern Ireland) Order 1989[^f00029], nothing in paragraph (1)(a) imposes a requirement which exceeds the requirements of paragraph 5D[^f00030] of that Schedule.

Right to return after parental bereavement leave

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• (1) An employee who returns to work after a period of parental bereavement leave which was—

• (a) an isolated period of parental bereavement leave; or

• (b) the last of two or more consecutive periods of statutory leave which did not include any—

• (i) period of parental leave of more than four weeks; or

• (ii) period of statutory leave which when added to any other periods of statutory leave (excluding parental leave) taken in relation to the same child as the period of parental bereavement leave the employee is returning from means that the total amount of statutory leave taken in relation to that child totals more than 26 weeks;

is entitled to return from leave to the job in which the employee was employed before the absence.

• (2) An employee who returns to work after a period of parental bereavement leave not falling within the description within paragraph (1)(a) or (b) is entitled to return from leave to the job in which he or she was employed before the absence, or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is both suitable and appropriate for the employee to do in the circumstances.

• (3) The reference in paragraphs (1) and (2) to the job in which the employee was employed before the absence are references to the job in which the employee was employed—

• (a) if the return is from an isolated period of parental bereavement leave, immediately before that period;

• (b) if the return is from consecutive periods of statutory leave, immediately before the first such period.

• (4) In this regulation, “parental leave” means leave under regulation 13(1) of the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999[^f00031].

Right to return after parental bereavement leave: supplementary

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• (1) The right to return under regulation 10 is a right to return—

• (a) with the employee’s seniority, pension and similar rights as they would have been if the employee had not been absent; and

• (b) on terms and conditions not less favourable than those which would have applied if the employee had not been absent.