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    12 October 2020

    Employment Law and Maternity Rights: During Maternity Leave

    In the 2nd in our series on maternity-related employment law, we consider advice during maternity leave.

    Employment Solicitor James Conley considers reasonable contact between the employee and employer and Keeping-in-Touch (KIT) days during maternity leave.

    A change in the maternity employment regulations, which came into effect in 1st April 2007 provides for ‘reasonable contact’ during maternity leave as well as more formal KIT days. These were introduced in response to concerns that the law did not do enough to encourage effective communication between employer and employee during maternity leave.

    Reasonable Contact

    An employer may make ‘reasonable contact’ from time to time during an employee’s maternity leave. This contact may be used, for example, to enable the employer and employee to discuss arrangements for the employee’s return to work or to keep the employee informed of important developments at work.

    The Department for Business Energy and Industrial Strategy Guidance (BEIS) suggests ‘what is reasonable’ will depend on the individual circumstances, including the attitude of the employee.

    It would be good practice before the employee starts maternity leave to seek their view as to how much contact she would like during leave and how they would like to be contacted, for example, by telephone, e-mail or post. The employee should also be included on the distribution list for workplace news bulletins, vacancies, information about social events and even training courses, unless they request otherwise. The employee should, of course, be made aware that there is no pressure to take any action or attend any events during maternity leave. However, to exclude the employee against their wishes could amount to a breach of mutual trust and confidence and/or pregnancy and maternity discrimination.

    Other considerations during maternity leave include:

    • Annual leave
    • Pregnancy related sickness absence
    • Dealing with miscarriage and still birth
    • Redundancies during maternity leave

    Keeping-in-Touch (KIT) Days

    KIT or ‘keeping in touch’ days allow the employee to carry out work during maternity leave for up to ten days for their employer without bringing ordinary or additional maternity leave to an end.  Some employees can work up to 10 paid days (20 days for Shared Parental Leave) during their leave.

    During KIT days, employees can carry out work for the employer and may be paid for this. The rate of pay is a matter for agreement between the employer and the employee, and would normally be the contractual rate of pay, depending on the work done and what is agreed between them.

    The type of work that employees carry out on a KIT day is a matter for agreement between the parties, but could include attending a conference, undertaking training or attending a team meeting. Any day on which work is done during the maternity leave period will count as a whole KIT day, so if the employee comes in for a one-hour training session and does no other work, that will count as one KIT day. According to the BEIS guidance, if the work carried out during one shift straddles midnight, it may be counted as one day if the employee’s normal working pattern is such that this would fall within a normal working day.

    An employer cannot require an employee to work a KIT day during maternity leave and neither does an employee have the right to work KIT days without her employer’s agreement; she cannot simply turn up for work and expect to be paid. If the employer offers the employee the opportunity to work on a KIT day, she is entitled to turn this down without suffering any consequences. It is unlawful for an employer to treat an employee unfavourably and/or to subject an employee to detriment for not agreeing to work KIT days, or for working or for considering such work. It is also unlawful to dismiss an employee for these reasons.

    KIT days cannot be taken during the two-week compulsory maternity leave following the birth of the baby.

    To read our Employment Law and Maternity Rights series: please use the links below:

    Pt1. Employment Law and Maternity Rights: Before Maternity Leave 

    Pt3. Employment Law and Maternity Rights: After Maternity Leave

    If you would have further questions regarding any of the points raised in our employment law and maternity rights series for employers or you wish to speak to a member of the Employment team, please do not hesitate to call 01603 598000 or email employment@steeleslaw.co.uk.

    *The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.


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