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

Let’s Keep In Touch!

Since the introduction of the Maternity and Parental Leave Regulations 1999, regulation 12A, provides the right to work up to ten keeping-in-touch days (KIT) days during maternity leave.

We shouldn’t forget that maternity leave lasts for up to 52 weeks regardless of service. Many women will advise their employers that they wish to take 9 months. That’s fine but when we write to the employee to advise of the maternity leave dates and pay in response to their request for leave, we should always advise they are entitled to 52 weeks leave. If they wish to return early they need to give a minimum of 8 weeks’ notice.

Here’s what’s in the Maternity and Parental Leave Regulations 1999 about KIT days:

• (1) Subject to paragraph (5), an employee may carry out up to 10 days’ work for her employer during her statutory maternity leave period without bringing her maternity leave to an end.
• (2) For the purposes of this regulation, any work carried out on any day shall constitute a day’s work.
• (3) Subject to paragraph (4), for the purposes of this regulation, work means any work done under the contract of employment and may include training or any activity undertaken for the purposes of keeping in touch with the workplace.
• (4) Reasonable contact from time to time between an employee and her employer which either party is entitled to make during a maternity leave period (for example to discuss an employee’s return to work) shall not bring that period to an end.
• (5) Paragraph (1) shall not apply in relation to any work carried out by the employee at any time from childbirth to the end of the period of two weeks which commences with the day on which childbirth occurs.
• (6) This regulation does not confer any right on an employer to require that any work be carried out during the statutory maternity leave period, nor any right on an employee to work during the statutory maternity leave period.
• (7) Any days’ work carried out under this regulation shall not have the effect of extending the total duration of the statutory maternity leave period.

Why was it introduced?

The introduction of the being entitled to work up to 10 KIT days without the leave being brought to an end, or the SMP being affected as was immense as before 1999, if you did any work your maternity pay would stop.

Can someone do more?

Shared Parental Leave has not seen a huge take up since its introduction, but technically, more KIT days can be taken as SPLIT days for those on Shared Parental Leave.

In addition employees on shared parental leave are entitled to work up to 20 days often referred to as SPLIT days without their statutory leave or pay being affected.

But what about pay…

Unfortunately the relevant legislation does not address how employers should deal with contractual pay for employees who work a keeping-in-touch day.

This means that the employer could set out the rate of pay for employees working keeping-in-touch days in the employment contract or their maternity policy or it may decide it on a discretionary, case-by-case basis, for example depending on the nature of the work carried out.

Of course employers would need to bear in mind their statutory obligations about paying staff, including the requirement to pay the national minimum wage and their responsibility to ensure that women and men receive equal pay for work of equal value.

If an employer decides to pay all employees their full contractual pay on keeping-in-touch days, it should also decide whether or not any statutory pay will be offset against the contractual pay or paid in addition, where the keeping-in-touch day falls in a period when the employee is receiving statutory maternity, paternity or adoption pay.

This will often mean that any entitlement to SMP is offset against the contractual pay. The employee therefore still receives a day’s pay for the KIT day worked.

Where a KIT day is worked during a period of additional maternity leave or where someone isn’t entitled to SMP, the employee receives a day’s pay as normal.

If you need any assistance with any aspect of managing maternity please get in touch on 01527 306066.