Commentary on Sections Section 2 - Parental Bereavement Pay
Section 2 of the Act adds Part 12ZD (containing sections 167ZZ9 to 167ZZ19) to the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The Part creates an entitlement to parental bereavement pay and will result in the provision of an entitlement to miscarriage pay.
Section 167ZZ9 - Entitlement
Section 167ZZ9 provides that a person who is a bereaved parent (because they meet the conditions to be set in regulations as to their relationship with the child) and who meets the weekly earnings threshold will be eligible for parental bereavement pay.
The weekly earnings threshold is met if the person’s normal weekly earnings for any continuous 8 weeks, falling within the relevant 16 week window which precedes and follows the death of the child, is not less than the lower earnings limit in force at the end of the relevant week.  Section 167ZZ17 allows provision to be made by regulations for assumed earnings for the weeks following the death of the child.
Section 167ZZ9 specifies that the pay entitlement is applicable for each deceased child in the event of the death of more than one child.
Section 167ZZ10 - Entitlement: Supplementary
Section 167ZZ10 specifies that, in order to receive payments, a person must give notice to their employer of the week or weeks they are intending to take leave.  This must be in writing if the employer requires it.
Regulations may provide for when that notice must be given, and can disapply or modify the requirement for notice in specified circumstances.  They can also set out requirements for evidence relating to proof of entitlement.
Under subsection (4)(a) the Department may, by regulations, provide that section 167ZZ9(2)(b) or (c) and (5) to (7) have effect subject to prescribed modifications in certain prescribed cases.
The regulations can specify how earnings are to be calculated or estimated for the purposes of deciding whether an employee meets the earnings threshold. This includes being able to identify particular types of payments which are to be excluded from the calculation.  The regulations may also provide for amounts earned from the same employer under two separate contracts to be aggregated for this purpose.
Section 167ZZ11 - Liability to make payments
Section 167ZZ11 sets out certain conditions under which an employer is liable to pay a person parental bereavement pay.
Regulations must make provision for liability for parental bereavement pay in the event that the employer terminates their employee’s contract to avoid making this payment.
Regulations may also specify conditions where this liability will shift to HM Revenue and Customs.
Section 167ZZ12 - Rate and period of pay
Section 167ZZ12 states that the weekly statutory rate of parental bereavement pay will be set in regulations, which may include provisions for different rates for different situations.
Regulations will specify the number of weeks’ entitlement (which must be a minimum of two weeks), and the ‘qualifying period’ within which the pay must be claimed (which must be a minimum of 56 days starting from the child’s death).  The employee will be able to choose the week or weeks for which pay is claimed, in accordance with the regulations, and the regulations may allow pay to be claimed for non‐consecutive periods, which must be blocks of a week or weeks.
Statutory parental bereavement pay is not payable if, during the week for which the statutory pay is claimed, the employee works for the employer who is liable to pay the statutory pay.  This is regardless of whether or not the work is performed under an existing contract of service, or a new one.  It is also not payable in respect of a statutory pay week if, during that week, the employee has worked for another employer who is not liable to pay statutory pay, but regulations can prescribe situations where this does not apply.
Regulations may specify further circumstances in which an employer is not required to pay statutory parental bereavement pay.
Employees may choose the start and end point of their statutory pay week.  A week is any period of 7 days.  If it is necessary to calculate a daily rate of statutory parental bereavement pay (for the purposes of these provisions, or any regulations), this should equal one seventh of the weekly rate.
Section 167ZZ13 - Restrictions on contracting out
Section 167ZZ13 specifies that parental bereavement pay rights cannot be diluted or denied in an employee’s contract, nor can an employee be required to contribute to the costs.  This does not affect the validity of any agreement allowing the employer to make deductions from statutory pay, if the employer is also authorised to make the same deductions from any contractual remuneration which the employer is obliged to pay during the period (or would be authorised to make those deductions if there was an obligation to pay contractual remuneration).
Section 167ZZ14 - Relationship with contractual remuneration
Section 167ZZ14 states that the entitlement to statutory parental bereavement pay does not affect an employee’s rights to payments associated with their contract of service.
However, it allows an employer to set off any contractual remuneration paid to an employee during a period in which they are entitled to statutory pay, against the liability to make statutory payments to that employee, and vice versa.
Regulations can specify particular types of payments which are to be regarded (or not regarded) as contractual remuneration.
Section 167ZZ15 - Crown employment
Section 167ZZ15 provides that bereaved parents employed by the Crown will have the same entitlements to parental bereavement pay as those who work for other employers.
Section 167ZZ16 - Special classes of person
Section 167ZZ16 allows the Department, with the agreement of HM Treasury, to modify, by regulations, how the right to parental bereavement pay applies to bereaved parents who are, have been or will be outside Northern Ireland; employed on board any ship, vessel, hovercraft or aircraft; or in prescribed employment in connection with continental shelf operations.
Section 167ZZ17 - Supplementary
Section 167ZZ17 provides definitions for Part 12ZD and other supplementary provisions.  This includes the definition of an employer as someone who is paying secondary Class 1 National Insurance contributions in relation to any of the earnings of the bereaved parent (or who would be paying such contributions but for the condition in section 6(1)(b) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 or the fact that the employee is under 16).
An employee is defined as someone who is gainfully employed in Northern Ireland, either under a contract of service or in an office with earnings.
Regulations can set out exceptions to this, and also circumstances where individuals who would not be classed as employees according to this definition are nevertheless to be treated as employees for the purposes of parental bereavement pay.
Regulations may set out when two or more employers, or two or more employment contracts, should be treated as a single employer or contract.
A week is defined as a calendar week, except in relation to section 167ZZ12 which deals with the weeks in which statutory pay can be claimed; in that case a ‘week’ can start or end on any day of the week.
An employee’s normal weekly earnings are calculated as the average weekly earnings that have been paid to them over a set period (to be specified in regulations) under their employment contract with the employer liable for parental bereavement pay.  Regulations may provide for assumed future earnings and can also set a different method for calculating normal weekly earnings in designated circumstances.
Regulations will also specify what is meant by ‘earnings’.
Regulations can make provisions for employees working for certain National Health Service bodies whose contracts of employment have been treated as ‘divided’ into more than one contract, following the establishment of Health and Social Care trusts, to elect for all their contracts to be considered as one for the purposes of provision concerning parental bereavement pay.
Regulations may also set the conditions that must be satisfied in order for an employee to be entitled to make this decision.  Regulations may also include the time within which an employee must make this decision, how notice of this choice must be given and to whom, as well as how the information that must be provided alongside the notice should be given.
Regulations can also specify which one of the person’s employers, under these circumstances, is liable to pay their employee parental bereavement pay.
Section 167ZZ18 - Application in relation to stillbirths
The entitlement to parental bereavement pay under sections 167ZZ9 to 167ZZ17 will apply on the death of a child under 18.  Section 167ZZ18 ensures that this entitlement will extend to parents of children stillborn after 24 weeks of pregnancy.
Section 167ZZ19 – Application in relation to miscarriage
Section 167ZZ19 requires the Department, by regulations, to provide that Part 12ZD and regulations under it apply in relation to a person who has experienced a miscarriage as they apply in relation to a bereaved parent, with such modifications, if any, as specified in regulations. The Department may also provide that regulations extend to a person who satisfies conditions as to their relationship with the person who has experienced the miscarriage.   This enables the right to be extended to, for example, the father or the person’s partner.