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:
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.