Employers' FAQs about maternity leave

We talk to Jonathan Bell, lawyer at the Equality and Human Rights Commission about the most frequently asked questions about maternity leave.

I’m often asked about contact – whether that’s the type or frequency of contact an organisation should have with their employee or what is a legal obligation and what is good practice.

The employer must contact her about any reorganisation or other changes in the workplace that affect her job; any promotions or other job opportunities (with an explanation of what she needs to do to apply for these); and any possible or planned redundancies.

An employer should discuss how they will contact the employee during their maternity leave before they go off on leave. In my experience, this is really helpful as it puts a plan in place that everyone is happy with and everyone knows what to expect.

The discussion should include how much contact you will have; what form this will take (will it be via email, on the ‘phone, through letters or the company’s intranet?); what you will discuss when you are in contact, such as any leavers or new starters, or training events or social activities that she might want to take part in; whether she wants to receive news bulletins; when an appraisal will be held, if this will be during her maternity leave; Keeping in Touch (KIT) days and the pay for those days; and anything else the employee wants to be updated on.

It is absolutely good practice to include this as part of the discussion. It is very helpful to explain that there will be times when the employer is legally required to contact her, for example if there is a redundancy situation or where there are developments that affect her job, such as promotion possibilities or new job opportunities.

The employer should also explain that she is not under any obligation to work during maternity leave but she will be paid for any days she decides to work which will not affect her statutory maternity pay as long as she doesn’t exceed her KIT days entitlement, and if she wants to attend training then you can send details of any taking place so she can say which she can attend.

Finally, it’s a good idea to reiterate that apart from times when you must contact her, you will get in touch as much or as little as agreed.

Yes, they are popular but not all employers understand exactly how they work. Employers can offer employees going on maternity leave the option to work for up to 10 days during the maternity leave without affecting entitlement to Statutory Maternity Pay. But employers are not legally required to offer these KIT days – they are voluntary for both employer and employee.

However, if there are training events available for employees and a woman on maternity leave would be disadvantaged if she did not attend, it would be good practice to offer her the opportunity to attend using KIT days.

If an employee takes SPL she and her partner can work a further 20 days during SPL. These are known as Shared Parental Leave in Touch (SPLIT) days.

Well, we touched on this before but promotion is something that employers are usually unclear about. Employers often ask if they have to consider an employee for promotion if she is on maternity leave and the answer is definitely! If you don’t do this you would be discriminating against the employee. You should consider all employees in the same way and potentially make adjustments for employees who have been on maternity leave if they might be disadvantaged by their absence, for example by missing out on work developments.

You might suggest that an employee on maternity leave comes into the office for a Keeping in Touch (KIT) day to catch up on any developments to avoid this – but this should ultimately be the employee’s choice.

Yes – you do have to give a pay rise to a woman on maternity leave if she would have received a pay rise if she was working. This rise should be incorporated into any earnings-related statutory or contractual maternity pay.

For example, if a woman on maternity leave is receiving contractual maternity pay based on her salary and, at an annual pay review, staff are awarded a two per cent pay rise, failure to include this in her contractual maternity pay would be unlawful discrimination. Her contractual maternity pay should be recalculated so it is based on her salary plus the two per cent increase.

The answer is ‘yes’ again. The employer must treat her the same way as any other job applicant, except you might have to wait for her to start work if she is on maternity leave (you can discuss this with her). You absolutely must not reject her simply because she is on maternity leave, has just taken maternity leave, or is about to go on maternity leave.

It would be maternity discrimination if, because of her maternity leave, you refused to interview her or did not appoint her to a job if she was the best candidate; gave her a job for a limited period instead of permanent employment; insisted she started work when she was on maternity leave unless she agreed; or offered her a lower salary or other different, less favourable terms.

You can make an employee redundant when she is on maternity leave but only if:

  • there is a genuine redundancy situation which is not caused by the maternity leave itself
  • you make sure any women who have been on maternity leave, currently on maternity leave, or planning to go on maternity leave are not disadvantaged
  • you consult the employee on maternity leave in the same way as other employees (and if she can’t attend meetings to discuss this at work, find another way of consulting her, such as phoning her, or meeting nearer where she lives or at home if she agrees to this)
  • the selection process, including selection criteria and how they are scored, does not disadvantage the employee because of her pregnancy or maternity leave.

If the employee’s role is made redundant during maternity leave, you are legally required to give her the first option on any suitable alternative work that is available. She must be considered for this before any other employee and it’s your responsibility to identify a suitable alternative available position and offer it to her. It’s not enough to tell the employee to search the intranet to find something.

You can dismiss an employee if there is a fair reason for the dismissal and you follow a fair procedure. For example, if you discover that an employee has been dishonest you can take disciplinary action and dismiss her, provided you follow a fair procedure as set out in the Acas Code of Practice.

Annual leave sometimes still causes confusion, in my experience. I’m often asked if employees accrue this while on maternity leave – the answer is yes, they do. However, they cannot take maternity leave and holiday at the same time, so if they want to take paid holiday they need to bring their maternity leave to an end.

This is something that employees also often don’t understand, so it is good practice to discuss this with them and decide when the holiday will be taken (before or after the maternity leave). The minimum annual leave is 28 days including bank holidays (pro-rated if they are part-time) and any extra holiday provided for under the contract of employment.

Last updated: 13 Jan 2017