Maternity leave: when is contact reasonable?

Maternity leave: when is contact reasonable?

The law does not prohibit contact with an employee on maternity leave.

However, there is scope to claim unlawful discrimination if an employer makes excessive contact where the treatment is unfavourable and the reason for the treatment is the employee being on maternity leave. It is important for employers to strike the right balance and ensure that the contact they make is ‘reasonable’.

So what is excessive contact and unfavourable treatment?

The only legislative reference to contact during maternity leave relates to the employer’s entitlement to initiate contact, as opposed to the employee’s entitlement to privacy, and is at Reg 12A(4) of the Maternity and Parental Leave etc. Regulations 1999/3312 which reads: ‘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’. When read carefully it is clear that the purpose of this regulation is to prevent the ‘maternity leave period’ from inadvertently being brought to an end by contact. Rather unhelpfully ‘reasonable contact’ isn’t defined in the regulations and no rights or obligations arise from reg 12A(4).

‘Pregnancy and maternity’ is included among the nine protected characteristics in s.4 of the Equality Act 2010, and s.18 sets out the unique protections for women with this protected characteristic. They include:

  1. the right not to be treated unfavourably because of pregnancy, pregnancy-related illness or because of being on compulsory maternity leave – s.18(2)-(3); and
  2. the right not to be treated unfavourably because of exercising the right to ordinary or additional maternity leave – s.18(4)

Considering the wording of s.18(4), we can say that an employer who makes excessive contact with an employee on maternity leave is likely to breach the Act where the treatment is unfavourable and the reason for the treatment is the employee being on maternity leave. For example, a line manager who sent emails frequently to their personal assistant on maternity leave complaining about their dissatisfaction with the staff member covering their duties and the personal assistant’s absence would be very likely to breach s.18(4).

Turning to the case law, we found one example where an Employment Tribunal had upheld a claim for maternity discrimination partly because the employer had failed to make proper arrangements for reasonable contact during maternity leave. In this case, the claimant was a hospital manager. Two days after her caesarean section, her maternity leave cover began contacting her about work and putting her under pressure to respond. The Employment Tribunal panel were particularly concerned that the claimant had been contacted during the two-week compulsory maternity leave period and noted that this potentially amounted to a criminal breach of the prohibition in s.72(1) of the Employment Rights Act 1996: ‘An employer shall not permit an employee … to work during a compulsory maternity leave period.’ They found that the treatment was unfavourable and, in the absence of a non-discriminatory explanation, the reason for the treatment was her maternity leave. The contact was discriminatory under s.18.

What is evident is that an employee complaining about ‘unreasonable contact’ during maternity leave faces challenges in framing a legal claim. It will often be the case that the employer has some genuine, non-discriminatory reason for contacting the employee, and the maternity leave is merely part of the factual context.

In our experience, claims about excessive contact are rare. The more common complaint is that the employer did not contact them enough, they were not notified of an opportunity for promotion, they were not invited to the summer day out, or they were not included in a staff consultation. Many employers will find it difficult to strike the right balance between respecting their employee’s right to be on leave and making sure they don’t discriminate against them by not keeping them informed about developments at work.

These potential pitfalls can be avoided if the employer talks to the employee well in advance of the maternity leave commencing to discuss the level of contact that will suit both parties. The objective is to clarify what level and type of contact would be ‘reasonable’ in the circumstances. A maternity leave policy should include a ‘keeping-in-touch’ section that can be referred to for guidance. However, different employees will feel differently about being contacted and how that contact is made.

The discussion should be minuted and a written plan agreed. The plan can then be reviewed and amended during maternity leave if necessary. For example, if the mother or baby should develop health problems, the mother’s capacity to stay in touch with work is likely to be reduced.

The amount of contact that is reasonable will change over the course of the maternity leave. As a starting point, expecting the employee to deal with work emails during the month after giving birth (and certainly during the compulsory two-week maternity leave period) would be unreasonable.

As the maternity leave progresses, the balance will shift towards getting ready for a return to work. Contact in order to arrange keeping in touch (KIT) days will normally be considered reasonable. Employees on maternity leave may take up to 10 KIT days (Maternity and Parental Leave etc. Regs 1999). However, employers have no right to demand that the employee use KIT days and applying pressure on an employee to work KIT days could be discriminatory.

As a minimum, employers should keep employees on maternity leave informed of any significant changes that may affect their position at work.

It is usually reasonable and advisable to contact employees regarding relevant vacancies and other significant developments such as reorganisations and restructures. However, the style and timing of the communication should be sensitive to the maternity leave.

There is no one-size-fits-all policy, but advance discussions, a degree of flexibility, and a common-sense awareness of the needs of the employee and her family will go a long way to protect the trust and confidence in the relationship and avoid potential complaints.