Childcare Counsel - bereavement leave

Q The nursery has an informal policy of allowing staff to take five days’ bereavement leave. One of the nursery staff has stated that there is now a statutory legal entitlement to two weeks’ paid leave. Is she right?

A No, there is no statutory entitlement to bereavement leave, paid or otherwise. Many employers do have a policy allowing a period of paid leave in the event that a close relative dies or becomes critically ill. Further, there is a statutory entitlement to a reasonable amount of unpaid time off to take action necessary after a dependant’s death.

There is a proposal to introduce a right for employees who lose a child (including a still birth after 24 weeks) the right to at least two weeks’ leave, two weeks’ statutory bereavement pay and protection from detriment, redundancy and dismissal as a result of bereavement leave. It may be this proposal that your member of staff is referencing. Consultation responses are in the process of being considered.

Q One of the nursery’s staff has recently been taken through a performance management process. During that process, she stated that her performance issues are connected with her going through the menopause and hinted that she believes the nursery is discriminating against her as a result. Can she validly claim discrimination connected to the menopause?

A Potentially, yes. There is a limited amount of case law on the issue, but cases have demonstrated that it is at least possible for employees to claim sex discrimination and/or disability discrimination arising out of the effects of going through the menopause.

In addition to protecting against discrimination, there is also a general duty to all employers to protect the health and well-being of staff and not to behave in a way that may undermine the implied duty of trust and confidence.

The menopause has often in the past been a taboo subject. However, the subject has recently received more focus, including Government-commissioned research on the topic. Further focus is expected, including on how women experiencing the menopause can be better supported at work.

My suggestion would therefore be to explore your employee’s explanation further, including asking her to explain specifically how she says the menopause has impacted her performance and to seek medical advice from her GP or the nursery’s occupational advisers as appropriate.