New maternity provisions: frequently asked questions on keeping-in-touch days
Caroline Blackwood and Carys Wilson of Osborne Clarke conclude a series of articles on the new maternity provisions by answering some frequently asked questions on keeping-in-touch days.
If an employee works a keeping-in-touch day during her paid maternity leave, should she be paid her normal remuneration in addition to her statutory maternity pay?
There are no statutory requirements in relation to pay for keeping-in-touch days. This will be a matter for agreement between the employer and employee. It may be set out in the employment contract or agreed on a case-by-case basis. However, the employer must ensure that the employee is paid at least the national minimum wage and ensure pay for work of equal value as between men and women. It will therefore be sensible in normal circumstances for the employee to be paid a pro-rata amount of her normal pay for the work done (taking into account any pay rise that she is awarded while on maternity leave).
If the employee works any keeping-in-touch days during her statutory maternity pay (SMP) period, the employer should continue to pay her SMP for any week in which she works. The employer may count the amount of SMP for the week in which the work is done towards the contractual pay agreed by the two parties.
Can an employee use her keeping-in-touch days while she is on maternity leave before the baby is born or can they be used only after the baby is born?
An employee's 10 keeping-in-touch days may be used at any stage during her maternity leave period, except during the two-week compulsory leave period immediately after her baby is born (or four weeks if the employee works in a factory).
Can an employee use her keeping-in-touch days while she is still on maternity leave but after her maternity pay period has come to an end?
Yes.
If an employee has used her 10 keeping-in-touch days, can she work any further days without compromising her maternity pay or leave?
No. The Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 provide for a maximum of 10 keeping-in-touch days during an employee's maternity leave. If an employee works for more than 10 days, this could bring her maternity leave to an end and jeopardise her right to SMP.
Can an employee use her 10 keeping-in-touch days to work 20 half days?
No. Any work done on any day during an employee's maternity leave will be considered as one keeping-in-touch day.
Can an employer insist that an employee use her keeping-in-touch days?
No. Keeping-in-touch days must be by agreement between the employer and the employee. If the employer offers the employee the opportunity to work during her maternity leave, she is entitled to refuse without suffering any detriment as a result. It is unlawful to subject an employee to any detriment for working, considering working or refusing to work a keeping-in-touch day and any dismissal on those grounds would be automatically unfair.
If an employee works a shift that straddles
If work carried out by an employee straddles midnight, it may be counted as one keeping-in-touch day if the employee's normal working pattern is such that this would be considered a normal working day. Employers should consider whether or not requesting an employee to work a night shift is an appropriate use of a keeping-in-touch day. While there are no specific statutory requirements regarding what constitutes a keeping-in-touch day, they are designed to allow the employee to keep in touch with developments at work and with her colleagues; employers should question if it is necessary or appropriate for an employee to work overnight for these purposes.
If an employee comes to work purely to introduce her baby to her colleagues, would this count as a keeping-in-touch day?
No. An employer and employee may make reasonable contact with each other during the employee's maternity leave. Therefore, if an employee comes into work for a purely social visit to introduce her baby to her colleagues, this would be considered as reasonable contact rather than as a keeping-in-touch day.
Can an employee extend her maternity leave by the number of keeping-in-touch days that she works?
No. Keeping-in-touch days are included as part of an employee's maternity leave.
Do keeping-in-touch days have to be used in a single block or can they be used as individual days?
Employers and employees are free to agree whether keeping-in-touch days should be used as a single block or as separate days.
Next week's article will be the first in a series looking at the Information and Consultation Regulations 2004.
Caroline Blackwood is a training and know-how associate in the employment, pensions and incentives department at Osborne Clarke (caroline.blackwood@osborneclarke.com) and Carys Wilson is a trainee (carys.wilson@osborneclarke.com).
Further information on Osborne Clarke can be accessed at www.osborneclarke.com.