Maternity leave and pay
Contact and work during maternity leave
During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.
In addition, an employee can work as a way of keeping in touch with workplace developments.
Contact with employees on SML
You can make contact with the employee by any means, eg telephone, email, letter, a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the type of work and the employee's post
- any agreement that you might have reached with the employee before their leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return
The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.
Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.
Keeping in touch (KIT) days
Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.
An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.
During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training or attending a team meeting.
Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.
If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.
Payment for KIT days
You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.
If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.
The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.
If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.
The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.
Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal.
Unfair treatment and KIT days
An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss her because she:
- refused to work a KIT day
- worked - or considered working - a KIT day
If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination