Are employees entitled to be paid their full contractual pay on keeping-in-touch days?

The relevant legislation does not address how employers should deal with contractual pay for employees who work a keeping-in-touch day during maternity, adoption or shared parental leave.

The employer could set out the rate of pay for employees working keeping-in-touch days in the employment contract or it may decide it on a discretionary, case-by-case basis, for example depending on the nature of the work carried out. Employers will need to ensure that they comply with the requirement to pay the national minimum wage.

If an employer decides to pay all employees their full contractual pay on keeping-in-touch days, it should also decide whether it will offset any statutory pay against the contractual pay, or pay it in addition.

For example, if an employer offsets statutory maternity pay (SMP) against contractual pay, an employee who earns £100 contractual pay for working a keeping-in-touch day during a week in which they are receiving the flat rate of SMP will still be paid only the flat SMP rate of £194.32 for the week. If the employee pays £100 contractual pay in addition to SMP, the employee will receive £294.32 for the week.

Employers should bear in mind that there may not be much financial incentive for an employee to work during the leave period if they will earn little or nothing above the statutory pay that they would already have received.