Commercial Awareness Update – W/C 13th May 2024

THE PATERNITY LEAVE (BEREAVEMENT) BILL: ONWARDS TO MORE COMPASSIONATE WORKPLACES

The Paternity Leave (Bereavement) Bill (PLBB), previously known as the Shared Parental Leave and Pay (Bereavement) Bill, made significant strides in Parliament.

It was introduced during its First Reading on December 6, 2023, and its Third Reading was conducted on April 26, 2024, marking a crucial step in its journey towards becoming law.

It follows the implementation of other reformative employment legislation, including the Paternity Leave (Amendment) Regulations 2024, which came into force on March 8, 2024, the Carer’s Leave Act 2024, which came into force on April 6, 2024, and the Neonatal Care (Leave and Pay) Act 2023, the latter with an estimated application date of April 2025.

The PLBB is comprehensive legislation intent on achieving more compassionate workplaces. It addresses the sensitive issue of grief and extends its support to all eligible parents, irrespective of their biological or adoptive status. This inclusivity underscores the importance of supporting employees in need.

Understanding the Bill

The primary aim of the Bill is to equip eligible employees to utilise paid parental leave in circumstances whereby a mother or a carer with whom a child is placed or is to be placed dies. It, therefore, incorporates the growing recognition of the need for bereavement support, especially for fathers, in the workplace, and without the added financial worries.

Unfortunately, current legislation has its limitations. For instance, Ordinary Paternity Leave (OPL) requires that the father be biological or partner to a birth mother or adopter. It requires an employee to be continually employed for at least 26 weeks by the end of the 15th week before birth or before the week of adoption, concurrent to a 3-month notice requirement before the birth or adoption.

Further, subject to stringent eligibility, Statutory Paternity Pay (SPP) may be payable for up to 2 weeks at the statutory rate or 90% of the average weekly earnings, whichever is the more significant. Neither OPL nor SPP is sufficient to help meet the needs of eligible fathers, especially when compared to the terms for maternity leave and its accompanying pay, and with some provisions scarcely accommodating adoptive parents or surrogate children.

In its current form, the PLBB proposes significant changes that could have a profound impact on eligible employees.

These changes include:

• The proposal that bereaved fathers (and their partners) are entitled to 52 weeks of leave during the first year of a child’s life should the mother or adoptive parent die.
• That the father (or their partner) is entitled to paternity leave irrespective of their length of service.
• The removal of the restriction that having taken shared parental leave, the entitlement to paternity leave after that is nulled. This followed an amendment instruction for the PLBB on March 5, 2024, to expand the proposal that bereaved fathers (or their working partners) are permitted access to ’day-one rights’ or, specifically, to Shared Parental Leave and corresponding pay from their first working day.

Impact on society

If the Bill, in its current form, receives Royal Assent and becomes effective, it could offer significant relief to all eligible individuals, particularly bereaved parents. They could consider taking leave with pay and without fear of reprisals or job loss, providing them with much-needed respite during difficult times. Also, a bereaved parent would have greater flexibility in choosing the amount of leave they feel they need and can do so sooner than current legislation allows.

However, arguments exist that the Shared Parental Leave pay attached to the leave is insufficient when the national living wage is considered. Critics argue that SPL, currently set at £172.48 per week, falls significantly short of the national living wage based on a 40-hour week, which is £480 excluding tax deductibles, making it challenging for some families to make ends meet during the leave period.

Additionally, according to Marie Curie’s senior policy and research manager, Rachel Warren, there is a widespread belief that bereavement leave must be made ‘available for everyone after someone close to them dies’. On that account, although the proposed Bill narrows the current gap in supporting bereaved fathers, there appears to be some way to go before the support as espoused is available to all who may need it.

Nonetheless, with the current trend of reformative employment legislation, laws might be on the horizon to accommodate all.

Impact on the legal industry

The Bill’s impact on employment law, human resources, and workplace policies is significant. Legal professionals and practitioners in these sectors are crucial in familiarizing themselves with its provisions and ensuring that their clients, whether employers or employees, are well-informed of their rights and obligations under the new legislation. Their expertise is invaluable in the effective implementation of the Bill.

Employment Law: The Bill necessitates changes to existing employment laws and regulations to accommodate the provisions for parental bereavement leave. Employment law professionals must advise clients on complying with the new requirements and any potential legal implications for non-compliance.

Human Resources: HR professionals must update their policies and procedures to align with the new provisions for parental bereavement leave and ensure that employees are informed of their rights and entitlements under the new legislation.

Workplace Policies: Policy and procedures specialists may be called upon to assist organisations in revising their internal policies to incorporate the new provisions. This review may include developing guidelines for managing bereavement leave, addressing employers’ and employees’ rights and responsibilities, and creating a supportive and compassionate work environment for bereaved parents.

All of the above is dependent on the Bill taking effect.

Consequently, stakeholders across various sectors must familiarise themselves with its provisions and work towards effective implementation. They could face challenges such as ensuring widespread awareness, adjusting existing policies, and managing potential resistance.

Nonetheless, the potential benefits, such as providing extended leave with pay without risks and the offer of much-needed respite during difficult times, could outweigh these challenges and ultimately benefit bereaved parents and society.

• By Aqua Koroma

THE SLIP RULE: A KEY ELEMENT OF LEGAL PROCEEDINGS

An adjudicator or a court has the legal capability to amend decisions that result from omissions or accidental errors. This is called the ‘Slip Rule’, often cited as a cornerstone in legal proceedings.

Understanding the rule

The rule is embedded in procedural regulations; for instance, in English civil law, it is operational under Paragraph 40.12 of the Civil Procedure Rules and its accompanying Practice Direction in Paragraphs 4.1 and 4.5, and additionally under the Family Procedure Rules at 29.16 and the guidance on utilising the rule in Practice Direction 29D.

It is often misconstrued that the rule can be used unsystematically. This is not the case, as it cannot be used to revisit decisions on their merits or correct judgment errors. It is specifically designed to correct accidental slips or omissions in judgments or orders, ensuring that the intended decision is accurately reflected. Hence, where there are typographical errors, an oversight in reasonings or a miscalculation, the Slip Rule supports the means for timely correction, ensuring the integrity and accuracy of judicial decisions.

Moreover, any party could apply for the rule’s application without notice, so long as the matter was adjudicated in a court and the court’s initial intention was clear, and it is not to be misinterpreted as the ‘Fifty-Six Day’ Slip Rule under criminal law; they are entirely different sets of rules and, suffice to say, are employed under starkly dissimilar circumstances.

A recent example of an application to use the Slip Rule is in the case of Deutsche Bank AG v Sebastian Holdings Inc. [2023] to amend a Committal Order. The Order was suspended for six months on the proviso that the defendant company complied with some conditions, including attending a Further Examination hearing within the mentioned period.

However, the hearing could not be listed within said period, and the application was made to amend the Order to continue until the hearing was completed. The defendant’s application was decided against as the issue was not raised when it should have, and the Court did not lack a ‘reasonably specific intention’ when it made the Order in question.

Other notable cases concerning the rule include Bristol-Myers Squibb Co. v Baker Norton Pharmaceuticals Inc. (No2) [2001], Foenander v Foenander [2004] and Mutual Shipping Corporation v Bayshore Shipping Co. [1985].

Impact on society and the legal sector

Society’s reliance on the rule of law means the rule serves as a vital means of upholding fairness and justice. Allowing for rectifying errors afore-described without requiring lengthy appeals promotes expediency and efficiency.

Besides, the rule fosters confidence in the judiciary. When errors are identified, they can be promptly addressed, thus bolstering trust in the administration of justice.

Concerning the legal sector, the rule serves both as a tool for practitioners and a standard for accountability. For instance, lawyers will leverage this provision to advocate for their clients’ rights and interests. Further, the rule underlines the responsibilities of legal professionals to review and scrutinise court decisions diligently, ensuring accuracy and precision in their application.

Adherence to the rule cultivates a culture of thoroughness and rigour within the legal profession, reinforcing the principles of competence and diligence.

Therefore, the Slip Rule is a fundamental component of the legal landscape, embodying accountability, efficiency, and fairness principles. As society evolves and legal frameworks adapt to changing needs, the rule remains a steadfast mechanism for ensuring the accuracy and reliability of legal judgments, thereby safeguarding the principles of justice and the rule of law.

• By Aqua Koroma