Flexibility in the workplace is a hot topic and employers are generally keen to look after their employees and encourage loyalty amongst the workforce. This will include ensuring that employees on maternity leave are treated lawfully and positively. I was surprised therefore in 2019 when I had a number of cases involving women on maternity leave where their employers had made a complete mess of the relationship. In view of this, I thought that an article early in 2020 would be timely.
Going on maternity leave is exciting but there will be fears and concerns for the employee as far as her employment is concerned. Maternity leave often comes at a time when a career is being developed and there have been numerous reported cases of maternity related discrimination. It’s no surprise therefore that an employee on maternity leave will be sensitive to what’s going on at work and how any changes/decisions might affect her.
The Equality Act 2010 offers protection for employees on maternity leave. It’s unlawful to treat a woman unfavourably in a number of circumstances including because she is exercising her right to take ordinary maternity leave (OML) or additional maternity leave (AML). Unfavourable treatment can come in many forms but can include, for example, not giving the employee the same opportunities as others who are not absent or not consulting with her over a restructure.
Some cases of fall-outs between employers and employees have been down to a lack of sensitivity or common sense applied by the employer in communicating (or more often not communicating) with the employee who is absent on maternity leave. This creates a situation no-one wanted or anticipated. However, once the relationship comes under strain, it can be hard to repair the damage and/or rebuild trust.
Women have the right to up to 52 weeks’ maternity leave (which consists of 26 weeks’ OML and 26 weeks’ AML). There is a right to return to the same job or, in certain circumstances, a different job which is both suitable and appropriate. So, if an employee might be off for 52 weeks, how should an employer keep in touch with that employee and make sure she is appraised of what’s going on? There are a number of ways this can be achieved.
A woman on maternity leave may work for up to 10 days without bringing her OML or AML to an end. These are known as “keeping in touch” or KIT days. They are useful and can be used, for example, for training events or team meetings. KIT days were introduced because of concerns about the lack of communication between employers and employees during maternity leave.
An employer cannot force an employee to work KIT days and, similarly, an employee cannot demand to have paid KIT days.
The law expressly states that an employer may make “reasonable contact” from time to time during an employee’s maternity leave. This is not the same as KIT days. Employers may bemoan the use of the word “reasonable” but, to be fair, this is legitimate because what is reasonable in one situation would not be in another. Each case must be judged on its own merits. I have rarely heard of employers being accused of unreasonably over-communicating with employees.
This reasonable contact could be used to keep the employee appraised of developments at work.
So, if the law recognises that contact can be made and allows for some work to be done, why do employers sometimes forget to keep in touch or make contact at all? Areas where employers may fall foul of the law include:
If an employer is proposing to carry out a restructure, they shouldn’t leave it to the last minute to speak to the employee on maternity leave. An employee on maternity leave must be consulted in the same way as employees who are not absent. It’s not hard and the employer might just have to find a different way of carrying out the consultation process.
Too often, I have seen employers not wanting to bother the employee on maternity leave, being unsure how to do the consultation process (so choosing not to do it at all) or just forgetting about the employee entirely.
An employee on maternity leave can be made redundant; there is no legal protection from this. The legal protection relates to those on maternity leave being given priority over other employees in respect of suitable alternative vacancies. By way of reminder, if a redundancy situation arises during an employee’s maternity leave and it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy to start immediately after her existing employment contract ends. As I say, this gives the employee on maternity leave priority over other employees who are also at risk of redundancy.
I have spoken to employers who are reluctant to involve an employee on maternity leave in a redundancy situation for fear of a discrimination claim. This is not the right thing to do and it’s unfair on the employee in question and others who are in the at-risk pool. You should include the employee and establish a suitable method of consultation.
In a number of recent cases I have been involved in, the employer has carried out a restructure without the employee on maternity leave knowing or having proper input into the process. This should never be done, it’s unforgivable (and of course unlawful).
If there are promotion opportunities at work, make sure the employee on maternity leave is informed and has the same chance to apply as others. There is case law where an employee successfully argued that her employer had breached the implied term of mutual trust and confidence and had discriminated against her on grounds of pregnancy/maternity because she was on maternity leave and her employer failed to inform her of a vacancy that she would have wished to apply for.
It’s a good idea to offer to use KIT days for training opportunities. Someone on maternity leave may be concerned that her skills or knowledge may become out of date and therefore the offer of training will often be appreciated. This therefore works well for both employer and employee although this cannot be compelled. The employee can be invited to attend whilst, at the same time, the employer can make sure she knows it’s not compulsory.
Don’t assume the employee on maternity leave cannot attend social events or will have her hands full with the new baby. Attending a work social event might provide some very welcome relief and be a good way of catching up (both from the employee’s and the employer’s perspective).
Don’t ignore the annual appraisal just because someone is on maternity leave. This is equally important for all employees, especially if promotion opportunities and/or bonuses are based on appraisal outcomes. You may need to adjust the timing but this can be agreed between the employer and the employee.
It is important to keep employees on maternity leave informed about changes in management and staff, particularly in their own team. If you have a news service on an intranet, this may be the easiest way of keeping in touch over matters such as new joiners and leavers (if the employee has access to this while they are absent). If not, agree a suitable method of communication for this aspect.
The Equality and Human Rights Commission (EHRC) sets out some useful guidance on its website and suggests that a discussion is held between the employer and the employee before maternity leave starts dealing with:
The EHRC further states that it is good practice for the employer to make clear to the employee:
It’s common sense really. You just need to find a way to keep the employee on maternity leave up to date with what’s going on at her place of work and agree before maternity leave starts how this will be done and the method of communication.
As with many issues at work, communication is the key thing to get right. That’s why agreeing the method and timing of communication up-front is a good idea. Communication in a timely and sensitive way will help you avoid claims and fall-outs as well as making sure your employee feels valued during this time.
If you would like to discuss anything raised in this blog please email David Roath.
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