Handling communications during and after maternity leave

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With new research from the Equality and Human Rights Commission suggesting that a significant proportion of women who are pregnant experience some form of discrimination, and a quarter of women also reporting too little contact with their employers during maternity leave, we look at handling communication with a new mother, both while she is on maternity leave and when she returns to work.

Under the Maternity and Parental Leave etc Regulations 1999 (the “Regulations”), an employer is permitted to maintain “reasonable contact from time to time” with an employee who is on maternity leave.

However, as shown by research of the EHRC (the “EHRC Paper”), employers may struggle with what “reasonable” is. The EHRC cites 21% of employers being in contact with employees a few times a month, 24% several times over a period of months, and the remainder at various (and sometimes less frequent) intervals.

Subject to the preferences of the employee, which can be changed, employers could provide employees with company updates (including promotion opportunities, vacancies or information about any business changes). However, it would not be advisable to provide employees with anything which could be construed as work or which could cause them to worry about their duties, including issues which require an employee’s response.

Where there are social events planned or more formal events, the employee should be invited. It should be made clear that employees are never required to attend such events and that the choice is theirs. If such events are not events for which employees would usually be paid (e.g. a social team outing), then the employee would not need to take this as a KIT day (see below for a discussion of KIT days). Conversely, where the event is one for which employees are paid (e.g. an away day), this should be offered to the employee as a KIT day (and paid – see below).

According to the EHRC Paper, 45% of mothers reported problems with employer contact during maternity leave, with the most common problem being too little contact from the employer (26%). Employers may therefore wish to record the level of contact with employees who are on maternity leave and ensure that they do not contribute to this statistic!

The EHRC Paper reported that just over 57% of employers were aware of KIT days and only 26% of employers had used them. Up to 10 agreed KIT days can be taken, and taking a KIT day will not terminate the employee’s maternity leave. Although there is no obligation for an employer to offer KIT days, many find that KIT days are useful in re-introducing an employee to the role. Similarly, there is no right for an employee to insist on having a KIT day, nor an obligation to accept any KIT day offered. Any part of a KIT day worked counts as a whole KIT day.

In relation to payment for a KIT day, the parties should agree in advance what the employee will be paid, and any pay can be offset against SMP liability. Employers often see KIT days as a working day and so pay the employee their usual contracted rate.

Note that either parent may also have 20 Shared Parental Leave In Touch days (SPLIT days) if they take shared parental leave. This is in addition to KIT days.

Once the employee returns to work, employers should take steps to facilitate the re-integration of the employee into her role, to ensure that the employee is kept informed of news and events and has the same access to IT and facilities on the same basis as other employees, to avoid allegations of discrimination.

Communications about reorganisations taking place while an employee is on maternity leave are even more important to get right because of the anxiety generated by reorganisations. Employers should include employees on maternity leave in any updates, even where the employee’s own role is not at risk.

If an employee on maternity leave is at risk of redundancy, however, employers should be careful in selecting their objective criteria, and any pregnancy-related absences (or lower scoring which can be linked to their absence) should not count against them as there are risks of an automatic unfair dismissal and discrimination. Employers also need to remember the special provisions contained in the Regulations which give employees who are made redundant whilst on maternity leave the right to be offered a suitable alternative role ahead of other employees.

This article was originally published on the CIPD People Management website.