Fri, Aug

Pregnancy and maternity: part II

Legal Eagle

Pregnancy and maternity: part II

By Anne-Marie Boyle of Menzies Law

Following on from the last Legal Eagle piece we look at communication requirements during maternity leave. What constitutes the ‘right’ level of communication for women on maternity leave can be confusing. Unhelpfully, there is very little guidance out there for employers. This uncertainty can lead to treating a woman on maternity leave as ‘out of sight, out of mind’, which can contribute to a host of problems for the employer.

Women on maternity leave remain bound by their employment contract and all the terms and conditions that would have applied had they not been absent (except ‘terms and conditions about remuneration’). If an employee gets involved with work during her maternity leave, it may be that her maternity leave will be deemed to have ended. This was why Keeping in Touch (KIT) days were created - to allow some work contact without bringing the maternity leave to an unintended early end.

With this risk in mind, the Maternity and Paternity Leave Regulations 1999 state that ‘reasonable contact from time to time between an employee and her employer which either party is entitled to make…shall not bring [maternity leave] to an end’. 

But what about the employee who wants full visibility on their work whilst they’re on leave?  Or an employee who insists on access to her email and computer? Or those employees who do not wish to hear from you at all until just before they are due back. Every employee will be different.

Employers getting it wrong could find themselves  facing claims for sex discrimination, pregnancy and maternity discrimination and unfair dismissal.  Your staff on maternity leave must not be at a noticeable disadvantage in areas like promotion, training and redundancy selection.

Some practical tips for effective communication during maternity leave are:

  • Start with your Maternity Leave policy. If you don’t have one then get one. Include a section on ‘communication’ and create wording to suit your organisation and reflect its style and resources.
  • Discuss communication preferences with your pregnant employee. You don’t have to accommodate every type of preference - it is ok to manage expectations as to communication levels.
  • Even if your employee does not want any communication during maternity leave, you must ignore this request if there is a promotion opportunity, redundancy exercise/TUPE transfer/major organisational change.
  • If you provide a laptop for work with email access, maintain this during maternity leave. Arguably there is no ‘down-side’ to allowing this access during maternity eave.
  • An employee cannot insist on being kept fully updated on her work whilst she is away, but sensitivity is important. Some women will be anxious about being away from work for an extended period. KIT days can be deployed really effectively here!
  • You may have an employee wanting to use her KIT days in a certain way. You can refuse a KIT request like this and an employee has no right to require that she access a KIT day in a particular way. Back to sensitivity though.
  • A women about to go on maternity leave may well wish to keep her options open as to how she returns to work - but she might not want to tell her manager this. Consider how internal vacancies are advertised. If they’re on a secure intranet, can they be made accessible to those on maternity leave?  Be careful of making assumptions about women on maternity leave - don’t assume they don’t want to hear about vacancies.
  • Try not to be an ‘out of sight, out of mind’ employer.  Invite your maternity leave employee to key celebrations like Christmas parties.