How to deal with an employee during maternity leave or shared parental leave.
While an employee is out of the workplace on maternity leave or ShPL, employers must bear in mind obligations that continue to apply.
We have set out below the key things to consider while the employee is on maternity leave or ShPL. (Please see the Glossary below for further information on terms used in this checklist).
Make sure the employee is being paid in accordance with any enhanced pay arrangements in place during maternity leave or ShPL or that s/he is being paid the correct amounts of SMP or ShPP.
Amounts to be paid
- First 6 weeks of maternity leave – SMP is 90% of normal weekly earnings.
- Next 33 weeks of maternity leave – SMP is either at the “prescribed rate” set by the government for that tax year or 90% of normal weekly earnings (whichever is lower).
- Weeks 3 – 39* of leave – ShPP is either the “prescribed rate” or 90% of the normal weekly earnings of the person claiming ShPP (*ShPL cannot be taken during the 2 week period of compulsory maternity leave, so ShPP is payable for up to a maximum of 37 weeks depending on what period of SMP or ShPP has already been paid to the mother or partner) .
Make sure any pay rises and bonuses to which she would be entitled are applied to her leave pay.
Employment terms and conditions
Ensure that the employee’s terms and conditions of employment (except remuneration) remain unchanged during leave so that they continue to receive fringe benefits such as health club membership, use of company car or laptop, or health insurance etc. Appropriate pension contributions should also continue while s/he is in receipt of maternity pay or ShPP.
Keep in contact
You are entitled to make “reasonable contact” with employees while they are on maternity leave or ShPL, so make sure that you keep them up to date (by the method agreed prior to their leave), on any changes that have happened in working arrangements or duties during the leave. This should include updates even on relatively minor changes (such as desk moves or new colleagues), as well as more significant changes, promotion opportunities or vacancies. Anything which might come as a surprise to the employee!
KIT Days / SPLIT Days
The employee can arrange to come into work for up to 10 days without bringing maternity leave to an end (or, separately and additionally, up to 20 days during ShPL) although there is no obligation on either party. You should not pressure employees to come in to work if they do not want to and you should make clear that this must be by agreement with the company. KIT Days and SPLIT Days cannot be taken during the period of 2 weeks immediately after the baby’s birth.
If the employee requests a KIT Day or SPLIT Day and you can agree to this, confirm what s/he will be doing (this could include training, attending a conference or a team meeting), whether this will be paid and make appropriate arrangements for them to come in.
Any work done on a day during leave (even if it is only an hour’s time) will count as one KIT Day or SPLIT Day, although government guidance suggests that a shift which straddles midnight (and thus includes 2 calendar days) could count as only one KIT Day or SPLIT Day if this is the employee’s normal pattern for a working day.
Meet to discuss arrangements for returning to work
Set up a meeting to catch up with the employee shortly before s/he is due to return to work so you can provide updates on workplace developments, discuss any training needs etc and to give the employee an opportunity to raise any concerns regarding flexible working or other arrangements for returning.
What if the employee’s fixed term contract expires while she is on maternity leave?
Unless it is renewed immediately, her employment will come to an end on the expiry of the fixed term contract and her leave will come to an end. If she is entitled to SMP, she should continue to receive this for the remainder of the SMP period.
What if the employee is placed at risk of redundancy while s/he is on maternity leave or ShPL?
Although you may make slightly different arrangements for such an employee (for example, offering meetings at home if s/he would prefer not to come in), you should make sure the employee is included in all communications and consultations regarding the potential redundancy, in the same way as if s/ he was not on maternity leave. The employee must be given the same opportunities to engage in the consultation process as any other staff at risk of redundancy and treated no less favourably regarding any selection process. You are not required to treat him or her as a “special case” or to “protect” them from redundancy, but you should take care not to discriminate. For example, consider excluding pregnancy-related sickness from any scoring on sickness absence rates and ensure that other criteria do not prejudice the employee as a result of being away from work (e.g. by assessing ability on a system introduced during or shortly before the leave).
If an employee on maternity leave or ShPL is selected for redundancy, s/he does have priority in one respect: where one is available, s/he is entitled to be offered a suitable alternative vacancy to start immediately after the existing contract ends. This could be a vacancy with the same employer or with an associated employer (such as a group company) and must be suitable and appropriate for him or her to do and be on terms and conditions no less favourable than if s/he had stayed in the old job. If there is no such vacancy available, then there is no obligation to create a job. If the employee were to unreasonably refuse a suitable offer, s/he may lose her right to a statutory redundancy payment.
If the employee is dismissed on grounds of redundancy during maternity leave or ShPL, the leave will come to an end. The employee should continue to receive any SMP or ShPP to which s/he is entitled for the remainder of the pay period. The employee will also be entitled to receive statutory redundancy pay based on normal working hours (rather than on leave pay) and should also receive notice pay based on contractual or statutory maternity pay (not her normal rate of pay) or shared parental leave pay (contractual or statutory).
AML – Additional Maternity Leave – a further period of 26 weeks’ maternity leave which follows immediately after OML giving a total of 52 weeks’ leave.
EWC – The Expected Week of Childbirth is the week (Sun-Sat) in which the due date falls.
KIT Days – Keeping in Touch Days – a woman can work for her employer for up to 10 KIT Days during her maternity leave without it ending.
MATB1 form – form given to expectant mother by their midwife or doctor from the 20th week before the EWC which confirms the pregnancy and due date.
OML – Ordinary Maternity Leave – 26 weeks’ maternity leave.
SMP – Statutory Maternity Pay. ShPL – Shared Parental Leave.
ShPP – Statutory Shared Parental Pay.
SPLIT days – Shared Parental Leave – In Touch days – a parent can work for up to 20 SPLIT days during her ShPL without it ending. These are in addition to her KIT days.
This note is a summary of the issues and is not a substitute for detailed legal advice. It may contain information of general interest about current legal topics, but it should not be taken as providing legal advice on any of the topics covered.