Blog: Pregnancy & maternity in the workplace – part 2

In our second blog on pregnancy and maternity discrimination, I’m looking at the area of effective communication during maternity leave.

In the words of Spandau Ballet, ‘communication let me down, and I’m left here.’  We all know the point of good communication with your employees and it is something that we employment lawyers have been banging on about for year.

What is the right amount of communication?

Employers are often left confused by what level of communication is the right amount for women on maternity leave. Unhelpfully, there is very little guidance out there.

Some of this confusion derives from the very unique nature of maternity leave. It is a statutory construct, allowing women to take time away from work to recover from the birth and spend time with their new baby. They remain employees.  They are entitled to the benefit of all the terms and conditions of employment that would have applied had she not been absent (except ‘terms and conditions about remuneration’). They also remain ‘bound’ by their contract of employment.

In some organisations, a woman on maternity leave is treated as ‘out of sight, out of mind’. And in others, sadly, women on maternity leave are pretty much in the exit lounge.

What else does the law say on communication during maternity leave?  It needs to be kept in mind the legal rule that if an employee gets involved with work again 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 contact with work without that contact automatically bringing the maternity leave to an unintended early end.

With this risk in mind, buried away in the Maternity and Paternity Leave Regulations 1999, reg. 12A (4) (yes, I read it so you don’t have to), it says that 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 [maternity leave] to an end’.  Unfortunately, there is no statutory guidance as to what ‘reasonable contact’ looks like nor what is meant by ‘entitled’.

So questions abound about ‘how much is too much?’ and  ‘how much is too little?’

What about the employee who says they want full visibility on their work whilst they are away?  Or an employee who wants to maintain access to her email and computer during her maternity leave?  Conversely, there are the employees who make it clear that they do not wish to hear from you at all until just before they are due back.

Rights and obligations for the employer

What are the employer’s obligations and rights in any of these scenarios?  These are important.  If employers get it wrong, they could find themselves facing claims for sex discrimination, pregnancy and maternity discrimination and unfair dismissal.

In the case of SW Yorkshire Partnership NHS Foundation Trust v Jackson (2018), an employee failed to receive an important work email relating to a redundancy process. Due to her absence on maternity leave, she did not access the email (which was only sent to her work email).  The EAT found that ‘having an important and urgent work message sent to an email address which one cannot access for some reason must amount to unfavourable treatment in one way or another’. The case was then returned to the Employment Tribunal to consider ‘causation’ (namely, was the reason why she had been treated unfavourably due to her being on maternity leave?).

We don’t know the eventual answer to that question in this case, but the point to take from it is that you need to be careful and not leave your ‘mat leave’ staff at a noticeable disadvantage.

Ultimately, if this came down to human error, then it would NOT amount to maternity discrimination. A case that helps confirm this was Johal v Commission for Equality & Human Rights UK 2010. Here, Ms Johal informed her employer that whilst on maternity leave she wished to be ‘kept in the loop with regards to vacancies and training packages’.  During her maternity leave a potentially suitable vacancy became available. Due to an administrative error, she was not informed of the vacancy and missed the opportunity to apply for the post.  She brought a claim alleging sex discrimination on the basis that she had been discriminated against because of her being absent on maternity leave.

The EAT upheld that Tribunal’s finding of no discrimination, on the basis that the reason for treatment was an administrative error, not the fact of her maternity leave. ‘Maternity leave was the occasion for the treatment complained of: it was not the cause’, said the EAT.

 

10 practical tips for effective communication during maternity leave

Here’s my guide to getting communication right with employees during maternity leave:

  1. Start with your Maternity Leave policy. If you don’t have one then get one!
  2. There should be a section in it about ‘communication’. Something like:  Shortly before your maternity leave starts, the Company will discuss with you the arrangements for covering your work and the opportunities for you to remain in contact during your leave. The Company may make reasonable contact with you from time to time during your maternity leave.
  3. Tweak the wording to suit your organisation and reflect its style and resources.
  4. Have a meeting with your employee before she starts her maternity leave. Discuss her communication preferences.  It isn’t the case that you have to accommodate every type of preference and it is ok to manage expectations as to communication levels.
  5. Even if your employee does not want any communication during maternity leave, you MUST ignore this request if there is a redundancy exercise/TUPE transfer/major organisational change whilst she is on maternity leave. You must also apply this approach to promotion opportunities (see point 9 about not making assumptions!).
  6. If you provide a lap-top for work with email access, maintain this access during maternity leave. It is debatable that pure work-related benefits do not have be maintained during maternity leave, but arguably there is no ‘down-side’ to allowing your employees to keep these to access as they wish during maternity leave.
  7. An employee cannot insist on being kept fully updated on her work whilst she is away. If she is on maternity leave, she is not ‘at work’. Sensitivity is important, however. Some women will be anxious about being away from work for an extended period. Is there a realistic compromise here? This is where KIT days can be best deployed. Suggest to your employee that she can use up to her 10 KIT days by coming into the office to have briefings/attend meeting regarding  her work.
  8. You may have an employee wanting to use her KIT days in a certain way. She might ask for a KIT day but that she works from home that day. The employer’s preference might be that she comes into work. Can you refuse a KIT request like this? Yes you can. There is no obligation to offer KIT days, nor to offer them in a certain way, and an employee has no right to require that she access a KIT day in a particular way. However, even if the law is clear here, sensitivity is of course needed.  Openly consider any request by an employee for a KIT day, as they are clearly showing an interest in connecting with the business.
  9. What about job vacancies? Employees may well be looking for other positions, particularly in large organisations.  A women who is 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 in your organisation. 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.
  10. Try not to be an ‘out of sight, out of mind’ employer. Invite your ‘mat leave’ employee to key celebrations like summer, Christmas, end-of-financial-year parties. It is the little things like this that go a long way with employee inclusion.

I hope these thoughts have been useful.  If you would like to discuss any aspect of maternity leave – or indeed any other type of ‘family rights’ leave, I’d love to hear from you.  You can contact me or even better, come along to our forthcoming seminar.