Parental Bereavement Leave Regulations 2020

Baroness Brinton Excerpts

Tuesday 3rd March 2020 Grand Committee

[Lord Knight of Weymouth (Lab)]

My Lords, I am grateful to the Minister for his introduction to these regulations, which I support. I am grateful to the department, and the Government, for bringing them forward. Their importance was brought home to me yet again last year when a work colleague at TES—my interests are in the register—lost a child through stillbirth at the moment of delivery. Having been a part of these discussions for nigh on 10 years, I felt better equipped to provide what support I could. I am happy to say that TES acted as a responsible employer, as the vast majority are, in giving Tara the support that she needed.

These regulations bring into effect the law that we brought through and mark the end of a campaign. It may be unfashionable to say so these days, but it is affirming to note that an individual, Lucy Herd, whose son Jack died 10 years ago, was able to campaign and then use the democratic and parliamentary process to effect a change in the law. She did so by securing all-party support of Members in both Houses. As noble Lords know, I first met her, and discussed her campaign, in a TV studio relatively soon after Jack died. She used the system for No. 10 petitions, as well as change.org, a slightly more sophisticated petitioning website to capture more data and more stories, which were really helpful. I introduced her to the then MP for Glasgow Cathcart, Tom Harris, who introduced a 10-minute rule Bill. That was the first time the issue was introduced in Parliament as part of a campaign.

Lucy was then able to contact those who had signed the petition to let them know that that was happening. I was then able to bring it to this House for the first time, with the Children and Families Act 2014. I am delighted to see the noble Viscount, Lord Younger of Leckie, in his place. He was good enough to meet Lucy and me to discuss the issue then and, in the end, we agreed that we would accept his kind offer that ACAS would issue guidance to employers on this and we would see how it went.

After the 2015 general election, when Will Quince was elected as a Member of Parliament, he raised the issue through an unsuccessful Private Member’s Bill. Mr Quince was able to help get it into the Conservative manifesto for the 2017 election, and then Kevin Hollinrake was able to secure a Private Member’s Bill slot and get it through. The goal was then wide open and I was able to put the ball in the back of the net, thanks to support from Front-Benchers, who are all here today.

I am delighted that when the previous Secretary of State announced that these regulations were forthcoming, the department used Lucy as part of the PR; she had another moment with the media to remember Jack and mark the success of her campaign. It was a nice bookend to the whole experience.

It is worth saying that Parliament and democracy can work. When a case is made intelligently, when all the systems are used well and when politicians on all sides in both Houses are willing to listen—that is not necessarily always the case—we can get great things done. This is a significant thing that we are doing.

I want to say one other thing, almost in parentheses. The noble Baroness, Lady Brinton, has a point to make on benefits and the Department for Work and Pensions. I will not steal her thunder, but I am fully supportive of what I think she is about to say. I want to make sure that Ministers who are listening on this issue hear that. With that, I reiterate my support for the regulations and look forward to them being implemented next month.

[Baroness Brinton (LD)]

I thank the Minister for introducing these regulations. I pay tribute to Lucy Herd, who as we have heard has been campaigning for nearly a decade. When I first learned of the campaign, I knew that it would take a while because the issue is not one that affects many families. Not many families or their wider circle of friends will know somebody who has lost a child or are aware of a stillbirth. I give credit not just to Lucy but to the noble Lord, Lord Knight, Will Quince and Kevin Hollinrake for all the work they have done to ensure that this never lost the eye of Ministers. We may all collectively have been a thorn in their flesh, including myself over the past four or five years, but I am delighted that we have now got to the point where these regulations are coming into play.

I note particularly that account has been taken of the definition of “parent”. I was an informal foster parent. I was not a kinship carer but I had parental responsibility for two children after their mother died, so I am very grateful for that. It is because of such funny modern-day family situations that we need a regulation broad enough to recognise that when people are personally involved and have a responsibility, no employer or state system should say that they do not have the right to receive parental bereavement leave.

I am also grateful to the noble Lord, Lord Callanan, who kindly gave me an in to the issue that I want to raise, which I appreciate is not within the remit of BEIS. However, I raised this repeatedly during the passage of the Bill and I want to do so again.

I understand why the decision was made that self-employed parents will not be in receipt of this benefit because they are not in receipt of many other benefits. However, there is a serious inequity for parents, especially those who have stopped working, often for many years, because of the serious medical difficulty that their child has had. They have done so knowing that their child will die. The fact is that under our current system, the day after the child dies, they lose their disability benefit and carer benefit and, shockingly, they have to apply immediately for benefits. I remind the Grand Committee, because I raised this on the Bill, of the words of one parent who wrote:

“The day after, I applied for jobseeker’s allowance, wanting to buy myself a little extra time to grieve before returning to some sort of work, only to be told that because I hadn’t worked in 10 years, I was ineligible, despite the fact that in those 10 years I had worked harder and for many more hours than the average person. The fact that I had saved the Government and the NHS hundreds of thousands of pounds by providing my son with hourly complex medical care counted for nothing. You are told to man up, move on, get a job, pay the bills. Provide for your remaining family.”


That inequity still remains. The noble Lord, Lord Callanan, referred to unemployed parents not being covered but said that the DWP will keep this under review. It will do more than that because the campaign for these parents starts today.

[Lord Hendy (Lab)]

My Lords, I thank the Minister for introducing the regulations, the noble Lord, Lord Knight, and all those he mentioned for introducing the Parental Bereavement (Leave and Pay) Act 2018 which gives the power to make the regulations we are considering today. I shall raise three short points. The first is one that the Minister referred to in his speech, which is that these benefits are available only to employees. This raises a critical issue in labour law and indeed it is one that has beset labour law for centuries: different legal statuses are attached to different kinds of worker. The consequence of having a different status is that one is entitled to different employment rights. This issue will perhaps be dealt with in the forthcoming Employment Bill which I understand will deal with the Matthew Taylor report and contain some measures in relation to that.

The issue is that employees are entitled to more rights than other categories of worker. At one end of the spectrum one has the employee while at the other end one has the genuinely self-employed in business on his or her own account. In between, we have what lawyers call the limb (b) worker; that is to say, a worker under Section 230(3)(b) of the Employment Rights Act 1996, which is a worker under a contract that is not a contract of employment and not working for a client or a customer of a business of that worker. In effect, it is a kind of employee but not quite an employee. The consequence of being a limb (b) worker is that one does not have the same array of employment rights as an employee. There is a fourth category which is what lawyers call the false self-employed, which is somebody who appears to be self-employed because that is how the employer has designated him or her, but in reality and on examination in the courts or tribunals turns out to be an employee or indeed a limb (b) worker.

The point I make to the Minister is that there is really no justification for confining the right to bereavement leave or pay to those who are employees and not extending it to limb (b) workers. I appreciate that these regulations could not confer the benefit on limb (b) workers because the Act itself confines those benefits to employees, but when the Employment Bill comes to be drafted, this is something that could be addressed. There can be no doubt that limb (b) workers will suffer just as much grief and tragedy over the loss of a child as an employee. In his speech, the Minister suggested that the justification for this might be that all parental leave under the Employment Rights Act is confined to employees, but that is not really a justification for excluding limb (b) workers from the benefit of parental bereavement leave or pay.