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The Processes and Pitfalls of Dealing with Staff who are Taking Maternity Leave

With Samira on Maternity Leave from the end of today, we thought it was only fitting that our article this week covered this complex area of law. Family friendly rights, including leave and pay in relation to maternity are constantly evolving and growing as an area of employment law. In this article we aim to offer some clarity on this area and provide employers with some advice on the do’s and don’ts when dealing with staff taking maternity leave.  

Processes  

Ensure that you keep in touch with employees whilst they are away on maternity leave. 

Line managers should agree with employees that are due to go off on maternity what “reasonable contact” would be appropriate before their leave starts. Once agreed, you can use this time to discuss arrangements for the employee’s return to work, or to keep them informed of any important developments at work. You should make sure that you are informing all employees that are off on maternity leave of any promotion opportunities or vacancies which arise during their leave, as well as any training courses or team outings that are being communicated to other team members.  

Remember that employees can take Keeping in Touch (KIT) days. 

Employees off on maternity leave can take up to 10 KIT days without bringing their leave to an end. However, you cannot insist that they work a KIT day – it is a matter for agreement between you and the employee. The rate of pay is also a matter to be agreed between you and the employee but bear in mind that it would normally be the contractual rate of pay. Any day on which work is done during the maternity pay or maternity leave period will count as a whole KIT day, so if the employee only comes in for a one-hour training session, that will still count as one of their KIT days. 

Allow employees on maternity leave to carry over accrued holiday. 

Employees off on maternity leave continue to accrue their statutory and contractual holiday entitlements whilst on leave. A period of maternity leave will frequently span two leave years and it is not always possible for a woman to use up their current year’s holiday entitlement before they start maternity leave. It is therefore advisable to allow employees to carry over holiday that they have been unable to take while on maternity leave to the following year. In practice, many employees choose to tag this holiday on to the end of their maternity leave. 

Pitfalls  

Don’t be afraid to consider employees who are off on maternity leave for redundancy. 

This is lawful, provided maternity leave is not the reason for their selection for redundancy or dismissal and that any redundancy selection criteria used have not been discriminatory. For example, employers cannot compare attendance levels, which would result in an unfavourable score for someone who has been off on maternity leave. Pregnant employees and those on maternity leave should only be treated more favourably than male colleagues where this is reasonably necessary to remove the disadvantages arising from their situation.  

Don’t forget that an employee on maternity leave is still entitled to a pay rise.  

Where a pay rise is awarded throughout the company, or an employee on maternity leave would have received a pay rise but for being on leave, she should receive the pay rise at the time it is awarded. Her contractual and statutory maternity pay (SMP) should be recalculated so that it is based on her old salary plus the pay rise. The increase in SMP should be backdated as though it had taken effect at the start of the reference period (the 8-week period prior to the start of maternity leave on which SMP calculations are based) and the employee should receive a top-up payment to her SMP accordingly. Any other benefits linked to salary should also be adjusted to consider the pay rise. 

Don’t overlook a woman’s right to return to the same job.  

If an employee returns to work before or at the end of Ordinary Maternity Leave (the first 26 weeks), they are entitled to return to the same job on the same or no less favourable terms as they had before their absence, unless a redundancy situation has arisen. Where an employee returns during or at the end of Additional Maternity Leave (the second 26 weeks), she is generally entitled to return to the same job, unless it is not reasonably practicable for the company to permit them to do so. For example, if the company has undertaken a reorganisation, the employee is entitled to return to a different job, which is both suitable and appropriate, on terms which are no less favourable than they would have been had they not been absent.  

If you need help and advice regarding Maternity Leave, please do not hesitate to contact me or the employment team on 0113 350 4030 or at hello@scesolicitors.co.uk .

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation.

Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.
Richard Newstead

Latest posts by Richard Newstead (see all)

Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation. Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.

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