She’s on Maternity Leave...

...is it ok to make contact?

What are your rights when employed and then go on matenity leave and also what are the rights if you are an employer?

I have recently received a number of enquires relating to maternity leave and, in particular, from employers querying when they are able to contact a woman on maternity leave. As these questions appear to be prevalent at the moment I thought it would be useful to clarify the position.

What is reasonable contact?

As you may be aware there is a provision within the Maternity and Parental Leave etc. Regulations 1999  and the Paternity and Adoption Leave (Amendment) Regulations 2006 legislation that allows an employer to make reasonable contact with an employee whilst she is on maternity leave. There is no legal definition as to what constitutes “reasonable” contact and, to complicate matters further, reasonable contact is likely to vary from one individual to another.

In order to understand how much contact an employee would like whilst on maternity leave it is recommended that this discussion is had with her prior to maternity leave commencing. It is also advisable to ascertain whether the employee would prefer to be contacted by telephone, email or post.

There may be some unforeseen circumstances which changes the amount of contact that an employee seeks during maternity leave. For example, if the mother experiences a particularly difficult birth or a child is born prematurely then the employee may wish for lesser contact than originally indicated. As such, there should be some degree of flexibility in this regard by an employer.

What should I contact an employee on maternity leave about?

It is important that an employee on maternity leave is kept up to date in respect of any developments or changes within the business, training courses, social events and, in particular, any vacancies within the business. Failure to do so could result in a claim for sex discrimination i.e. an employee who would have applied for a job promotion if she had been aware of it but, because she was on maternity leave, the opportunity was not afforded to her as she was not notified. 

Keeping in Touch (KIT) days.

It was recognised that employee’s that had been out of the workplace for a number of months on maternity leave often felt isolated and anxious when they returned to work. KIT days were introduced as a way to reintroduce individuals back into the workplace and ease them back into their role.

An employee is allowed to carry out up to 10 days’ work for her employer during her maternity leave period without bringing it to an end. However, please note that KIT days cannot be taken during the two week compulsory maternity leave immediately following the birth of the child.

Any work carried out on any day will constitute a days’ work.

Can an employee be required to attend KIT days?

An employee cannot be required by an employer to attend KIT days and has the right to refuse them.

When can an employer contact an employee to discuss KIT days?

It is recommended that prior to commencing maternity leave an employer will explain to an employee what KIT days are and ascertain whether this is something they may be interested in. If they are, the employer should advise that they will contact them during their maternity leave and arrange mutually convenient dates for the employee to attend work. In the event that the employee has indicated she is not interested then it would still be worthwhile contacting them, whilst on maternity leave, confirming that they had indicated that they did not wish to attend any KIT days and giving them an option to contact the employer should they change their mind.

In terms of when to contact an employee on maternity leave there is no definitive answer. Where possible avoid contacting the employee during the compulsory two week period immediately following the birth of the child and, subject to any discussion with the employee prior to commencement of maternity leave, it would be advisable to contact them say 2-3 months before they are due to return to work. This allows sufficient time for the employee to arrange childcare and the employer to facilitate the KIT day.

What is the remuneration for a KIT day?

The rate of pay for an employee attending a KIT day should be agreed between the employer and employee. However this will usually be the contractual rate of pay.

It is also worth noting that any work undertaken during maternity leave, regardless of the duration, will amount to one KIT day, i.e. should an employee attend a two hour training course this will amount to one KIT day.

This article is intended only to give a brief overview in respect of the issues outlined.

For further information on maternity leave , or advice on employment law, please do not hesitate to contact Nicola Cockerill or our Employment Law team on 01733 882800.

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.