We are really displeased that a key employee is wanting to take her full 12 months maternity leave, so we have told her we expect her to come in to do the payroll for us one day each month, and we will call them KIT days.
Peter replies:
The law does encourage employers and employees to stay in contact with each other during maternity leave. Prior to the introduction of Keeping in Touch (KIT) days in the Work and Families Act 2006, it had not been possible to do so without bringing the leave to an end, or losing maternity pay.
An employee who is on maternity leave can work for her employer for up to 10 days by mutual agreement. Important points to note include the following:
- The employee can go in for one hour or a whole day – this will still be a Keeping in Touch day.
- The decision to undertake a KIT day must be made by agreement between the employee and the employer.
- The days can be taken singly or in blocks
- The employer has no right to demand that any such KIT work is undertaken, and the employee has no right to undertake such work.
So there is no obligation on either party to agree to the days, which means that neither party can insist on work being carried out. Furthermore if a woman is dismissed or otherwise penalised for refusing to do such work, she can claim automatic unfair dismissal or unlawful detriment.
It is all a matter of agreement, neither party can demand or insist. Reasonable contact can be made from time to time by the woman, or the employer to discuss arrangements for her return by asking about KIT days. By maintaining a minimal, but regular, presence during maternity leave – again bearing in mind there is no obligation for the employee to do so – staff can stay abreast of important workplace issues. This provision can make things easier for both the organisation, and the employee. It will allow a smoother reintroduction to the team, without employees having to hit the ground running after a long period of absence. The rate of pay is always a matter for agreement between the employer and employee, and may be provided for in the employment contract, or as agreed on a case-by-case basis.
Your actions are close to amounting to a detriment, and could even result in a claim for constructive dismissal, or discrimination on the grounds of sex or pregnancy/ maternity. You therefore need to apologise for your ‘expectation’ and seek to persuade her that it would be good for her to keep in proper contact with the world of work. This should be done in a much more friendly and constructive way than your first attempt.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
