Bereavement Leave – A Quick Guide for N.Z Employers
Bereavement leave is a minimum statutory entitlement under the Holidays Act 2003 (‘the Act’) – it is an area of employment relations that sometimes involves questions and compliance issues for employers.
For employers, the challenge is balancing legal compliance, operational continuity, and compassionate people management at a time when employees may be particularly vulnerable.
Failing to manage bereavement leave obligations can present legal risk to employers, including protracted employment disputes and non-compliance claims. Such issues underscore the importance of employer’s being informed about this area of employment law before making associated decisions like managing bereavement leave requests.
Who is Entitled to Paid Bereavement Leave?
An employee becomes entitled to paid bereavement leave once they meet the eligibility threshold in the Act (generally after six months’ continuous employment or otherwise meeting the prescribed average hours work test). This is set out in section 63 of the Act.
Paid Minimum Entitlement
The Act provides that eligible employees are entitled to:
Three days’ paid bereavement leave on the death of –
A spouse or partner.
A parent.
A child.
A sibling.
A grandparent.
A grandchild.
A spouse’s or partner’s parent.
An employee is also entitled to three days’ paid bereavement leave if they experience a miscarriage or stillbirth. This entitlement applies to:
The employee who was pregnant.
Their spouse or partner.
Where the employee was to be or is the ‘primary carer’ under the Parental Leave and Employment Protection Act 1987.
Importantly, the entitlement applies in the unfortunate case where the child is not born alive. Paid bereavement leave is automatic once eligibility criteria are met and an employer must always meet its obligations in terms of managing this issue. No exceptions.
One day’s paid bereavement leave for the death of any other person if the employer accepts that the employee has suffered a bereavement such as:
The closeness of the association between the employee and the deceased person.
Whether the employee must take responsibility for arrangements related to the death.
Any cultural responsibilities.
There is no limit on how many times an employee may become entitled to bereavement leave in a year, provided each entitlement arises from a separate death.
Timing and Use of Bereavement Leave
Bereavement leave can be taken at the time of death or notified by the employee.
It does not need to be taken consecutively.
Employees are not required to align bereavement leave strictly with funeral dates, although this is often common practice.
Employers must avoid imposing arbitrary timing restrictions regarding the timing and taking of bereavement leave. Bereavement leave is a minimum employment entitlement and must be correctly managed by employers.
Payment of Bereavement Leave
Bereavement leave must be paid at the employee’s ‘Relevant Daily Pay’ (‘RDP’) or ‘Average Daily Pay (‘ADP’) (if RDP cannot be determined), consistent with other forms of paid leave under the Act.
Employers should ensure payroll systems correctly apply:
‘RDP’ where hours and pay is predictable.
‘ADP’ such as where work patterns vary and it is not possible to determine RDP.
Incorrect calculation of paid bereavement leave, particularly for employees with variable hours or earnings is a common problem. Employers should pay close attention to relevant definitions and obligations prescribed by the Act.
Proof of Bereavement
Employers may request reasonable proof of death or bereavement, but this should be handled sensitively. Best practice includes:
Only requesting proof where there is a genuine need, or basis to question the circumstances surrounding a bereavement.
Allowing flexibility in the type of proof provided such as an obituary notice, death certificate, medical or funeral related correspondence.
Being mindful of cultural practices and timing constraints.
Heavy-handed or insensitive requests for proof can undermine trust and damage an employment relationship, or lead to disputes.
Interaction With Other Forms of Leave
Bereavement leave is separate from sick leave, annual leave and other leave entitlements.
Employees cannot be forced to use other leave instead of bereavement leave where are bereaved.
Additional paid or unpaid leave may be provided by an employer at its discretion.
Employers should clearly document any discretionary or additional leave arrangements.
Case Law Snapshot – What Decisions Tell Employers?
Minhinnick v New Zealand Steel Limited [2016] NZERA Auckland 335
Mr Minhinnick sought three days’ paid bereavement leave following the death of his whāngai brother – that is, a foster brother by tikanga Māori whose lived relationship was that of a brother. His employer declined the full three days on the basis that the employee’s whāngai brother did not fall within the statutory definition of “brother” under their interpretation.
Instead, the employer offered only one day of bereavement leave (recognising the relationship only as “another person”) and required the additional time off to be taken as annual leave.
The Employment Relations Authority (‘the Authority’) held that the employer adopted an overly narrow and rigid interpretation of “brother” and failed to properly consider the cultural reality of the whāngai relationship. In the circumstances, the deceased should have been treated as immediate family.
Important points:
The employee was entitled to three days’ paid bereavement leave.
Annual leave taken was required to be recredited.
The employer was found to have caused unjustified disadvantage and ordered to pay the employee $1,000 for injury to feelings and loss of dignity compensation.
These amounts excluded the employer’s own legal costs, which involved instructing a specialist ‘Queens Counsel’ employment lawyer and would have been significant.
Employer Takeaway: Employers must assess bereavement leave requests reasonably and in context, including cultural and familial realities. Employment disputes can also cause wider damage the relationship and further issues that will require time, resource and cost to manage.
Key Risk Areas for Employers
Treating bereavement leave as a discretionary benefit rather than a statutory right.
Failing to properly assess non-immediate family bereavements.
Inconsistent decision-making between employees.
Insensitive handling of proof requests.
Payroll errors in calculating paid leave.
Tips for Managing Bereavement Leave
Train managers: Front-line managers should understand both legal obligations and expected standards of empathy.
Be flexible where possible: The Act sets minimums, not best practice.
Document decisions: Record how and why a bereavement determination was made.
Check payroll accuracy: Regularly audit leave calculations for compliance.
Handled well, bereavement leave can reinforce trust and organisational values. Handled poorly, it can quickly escalate into legal disputes and long-term employee disengagement, along with other unintended consequences.
Employer Takeaway
Bereavement leave is not just a compliance issue, it is a test of an employer’s legal literacy, cultural competence, and people management capability. Employers who apply the law thoughtfully and consistently, while maintaining compassion, are best placed to minimise risk and support their workforce during difficult times.
Compliance Warning
Bereavement leave is a minimum statutory entitlement, not a discretionary benefit. Mishandling bereavement leave can expose employers to findings of unjustified disadvantage, wage arrears, penalties, non-compliance and reputational risk.
Key compliance risks include:
Applying rigid or technical definitions of family relationships without proper cultural or contextual assessment.
Declining or limiting leave without a genuine and reasonable assessment of whether a bereavement has been suffered.
Requiring employees to use other leave instead of bereavement leave.
Incorrect pay calculations, particularly for variable-hour employees.
The Authority and Employment Court expects employers to act reasonably, flexibly, and in good faith, particularly where cultural obligations are involved. When in doubt, a cautious and compassionate approach is usually the lowest-risk option.
This article is provided for general information only and does not replace professional advice. Employers should seek advice specific to their circumstances from Employer Pro if in doubt on their legal obligations associated with managing bereavement leave. Employer Pro has a range of employer focused resources and services available through our competitive Employer Protection Packages.
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