Some employers may question why it would be necessary or important to keep in touch with an employee when she is on maternity leave. Well, here is a tale to explain why it matters…….
Recently an employee was awarded £50,000 by an Employment Tribunal after she was excluded from an extra paid day off by her employers and because her employer failed to send her job adverts while she was on maternity leave.
The Tribunal heard that the employer had failed to keep the employee informed of opportunities for career progression, even though she had been encouraged to apply for promotions before she informed them she was pregnant.
Her first claim arose after the announcement of her pregnancy. All employees at the company were given an extra paid day off by the company as a thank you for their efforts during the Covid pandemic. However, the day off they were given was to be taken on a specific Friday, and because the pregnant employee did not work Fridays, she asked if she could have another day off that week instead. Her employer refused.
Then when the employee started her maternity leave, other than a few emails from HR about pension matters and some personal messages from her line manager at the start, she did not receive any other communications from her employer. Around seven months into her maternity leave, the employee got a text from her line manager to tell her someone had been appointed as the employee’s new manager and the company had also hired a governance and assurance manager, which was a role only published internally on the company intranet.
The employee was not happy about the text and what she perceived to be a lack of communication from the company during her maternity leave. It also went against the company’s maternity policy which stated that employees on maternity leave must be informed of job vacancies.
The employee commenced a grievance which was heard internally but not upheld.
The Tribunal ruled that the company’s decision to not allow her to reschedule a day off was “unfavourable towards part-time workers, and therefore indirectly discriminatory towards female members of staff, as well as deeply unsympathetic in relation to the claimant herself”. It also felt both roles notified to the employee would have been opportunities for the employee to progress within the company had she known about them and been able to apply. The Tribunal ruled that the employee “clearly [had] less favourable treatment” because she was on maternity leave as she was “barred from the opportunity” of participating in any recruitment process, or the chance to compete with other applicants to progress her career.
How could that have been avoided?
Well firstly, why penalise a part time employee for not happening to work on a day you are giving as an extra paid day off? A reasonable, and non-discriminatory approach would have been to allow the employee to take another day off in the same week, but on a day she actually worked!
Secondly, the employee and employer should have agreed prior to her maternity leave, how they were going to stay in touch.
Employers have the right to maintain a reasonable amount of contact with employees during their maternity leave, so having a meeting with them to talk about how they plan to stay in touch before the employee starts her maternity leave would have been a sensible move.
By law, while a woman is on maternity leave their employer must tell them:
- if jobs are being advertised
- of any promotion opportunities
- if they’re planning redundancies or reorganisation
Employees can also agree with their employers:
- what else they would like to hear about, for example staff bulletins or social events
- how they would like to communicate, for example by email, phone or keeping in touch (KIT) days; and
- how often they would like to be in touch.
Keeping in Touch days (KIT)
Employers and employees can agreed for the employee to attend the workplace for up to 10 days during their maternity, adoption or shared parental leave to help them stay in touch with the organisation and without ending their maternity, adoption or shared parental leave or affecting their maternity, adoption or shared parental pay (if they are still in receipt). These are called keeping in touch (KIT) days.
KIT days can be used to carry out any type of work and it is advise to agree collectively what the employee will be doing on their KIT day. It could be they will be undertaking work they would usually perform as part of their job, but could also be used to attend training, appraisals, conferences, team meetings or work-related events. Working from home could also count as a KIT day, where agreed with the employer.
KIT days should be used to help support the employee’s transition back into the workplace following their maternity, adoption, or shared parental leave. They can form part of a phased return to work toward the end of an employee’s maternity, adoption, or shared parental leave, with the KIT days used to work part-time in the lead up to starting back at work on their usual, permanent basis.
There should be an agreement made on pay for the employee on a KIT day in advance. The easiest option is for the employer to pay the employee their normal pay for the day and if this is more than their maternity, adoption or shared parental pay, the employer could opt to simply ‘top up’ the employee’s maternity, adoption or shared parental pay to their full rate. The employer must not pay the employee less than National Minimum Wage under any circumstances.
It’s up to the employee to agree with their employer:
- if they want to work keeping in touch days
- how many days they want
- what type of work they will do on the days
- how much they will be paid for the work
It still counts as a full keeping in touch day even if the employee only work part of it, for example a half day. If they work more than 10 keeping in touch days, their maternity, adoption or shared parental leave and pay will automatically end by law.
If you like some support or guidance with this, or any other HR related matter, please contact Kingswood Group on 01245-204450 or email us on HR@kingswoodgroup.org
