The Duchess of Cambridge is the newest member of The Firm but, as the world celebrates the arrival of her baby, it is unlikely that Kate will have to deal with the difficulties encountered by many women on maternity leave.
Women who are pregnant or on maternity leave have numerous legal rights but many of these are commonly misunderstood by employers. Even when employers are not actually breaking the law in their treatment of female employees, failure to follow good practice can cause stress and upset for those concerned, as ex-Government minister Yvette Cooper revealed last week.
Pitfalls to avoid
1. Failing to communicate with an employee on maternity leave
Many employers are genuinely concerned not to be seen to be pestering employees on maternity leave by contacting them about work matters and often simply assume that once the employee has gone on leave that they will want nothing more to do with the workplace until they return. However, as women can now have up to 12 months' maternity leave they may actually be anxious to be "kept in the loop" while they are away so they do not feel isolated on their return.
Such was the confusion about whether or not it was ok for an employer to make contact with an employee on maternity leave that a specific provision was enacted stating that there could be "reasonable contact from time to time between an employee and employer" during maternity leave (regulation 12A (4) Maternity & Parental Leave etc. Regulations 1999).
The easiest thing for employers to do is to agree with the employee before they go on maternity leave exactly how much contact they want, when they want it and what they want to be contacted about. For example, do they want to be kept on the circulation list for internal briefings (to their personal e-mail account), do they want to be invited to social events or do they want only to be contacted about significant developments affecting their role or the business, such as restructurings? As a minimum, employees on maternity leave should certainly be kept informed of promotion opportunities or relevant vacancies.
2. Forgetting to consult about collective redundancies
Just because an employee is not physically in the workplace, if a collective redundancy exercise is conducted in their absence, a woman on maternity leave should be included as far as practically possible. "Forgetting" about a woman on maternity leave and excluding her from the process by failing to pass on information made available to others could amount to pregnancy discrimination. An employer must now consult collectively once they propose to dismiss 20 or more employees as redundant, regardless of the location of those dismissals.
3. Failing to offer alternative employment in a redundancy situation
While it is possible to make a woman on maternity leave redundant fairly, in the right circumstances, employers often overlook an important caveat to this general principle which is contained in Regulation 10 of the Maternity & Parental Leave etc. Regulations 1999. Regulation 10 contains a rare example of positive discrimination in English law: the right for a woman on maternity leave who is redundant to be offered any suitable alternative employment ahead of others (where this is available). Such alternative employment may be with the employer itself or a successor employer or an associated employer.
4. Failing to continue contractual benefits
Other than any terms relating to remuneration, a woman's employment contract continues in existence while she is on maternity leave. Therefore, any benefits which are not part of "wages or salary" must continue to be provided throughout leave. This would include non-cash benefits such as gym membership but also, potentially, employer pension contributions (during at least the first 39 weeks of leave). When it comes to bonuses, the position is complicated but, generally, if the bonus is entirely discretionary a woman on maternity leave will be entitled to receive such a bonus.
5. Failing to recognise seniority accrued while on maternity leave
Even though a woman is not actually working while on maternity leave she must be treated as if she were for the purposes of seniority for eligibility for benefits and pay rises etc.
6. Not allowing carry over of accrued holiday entitlement
Women continue to accrue holiday entitlement (both statutory and contractual) while absent on maternity leave. Now that leave may last for up to 12 months a woman's absence may straddle more than one leave year. In line with the current wording of the Working Time Regulations 1998, many employers' policies say that employees may not carry over accrued but untaken holiday from one leave year to the next. However, applying such a policy to a woman who had been unable to take her leave because she had been on maternity leave would be contrary to European case law and may amount to sex discrimination. In practice, most employers get around this by allowing women to take all their holiday for the current leave year before they go on maternity leave and any other accrued leave from subsequent leave years before they return from maternity leave.
7. Insisting on women taking KIT days
An employee may work for her employer for up to ten "Keeping in touch" (KIT) days without bringing her maternity leave to an end. However, this is strictly voluntary and work must be agreed between the parties. An employer cannot insist on an employee returning for a KIT day and equally an employee cannot insist that an employer allows her to come back and work. An employee who is offered a KIT day may turn this down and must not be subject to any detriment for doing so. Where an employee does work a KIT day, the legislation is silent as to payment so this would again be a matter for prior agreement between the parties.
8. Wanting to keep on maternity cover
Employers sometimes consider that the temporary worker engaged to cover the employee's maternity absence is doing such a good job they would prefer to keep them on rather than have the employee return. However, the right to return to their old job after maternity leave is possibly the most valuable legal right that a female employee has. If they were dismissed in order to make way for another employee their dismissal would be automatically unfair. In very limited circumstances an employer may be able to offer a woman returning from maternity leave a suitable alternative role rather than her previous job.
The law in this area is complex and it is unsurprising that employers, including the Government itself it seems, struggle to comply with all requirements and best practice. Guidance is widely available including from ACAS and in the Equality and Human Rights Commission's statutory code of practice on employment but, given the significant legal consequences of getting it wrong, employers who are in any doubt about how to proceed in respect of a woman on maternity leave should seek legal advice at the earliest opportunity.