How should employers manage entitlement to “Keeping in Touch” days?Wednesday, August 25th, 2010
During the maternity, adoption and paternity pay period, no SMP, SAP or SPP may be paid for any week during which the employee performs any work for the employer. Although any such work does not bring the pay period to an end, the return to work, even if it is just for a day or part of a day, effectively ends the maternity, adoption or paternity leave period. The employee is left with an ongoing entitlement to SMP, SAP or SPP but no entitlement to maternity, adoption or paternity leave – an anomalous situation that creates all sorts of contractual problems.
To prevent this situation arising in the context of maternity and adoption leave (but not paternity leave), the employment legislation and social security legislation provide for employees to attend work for up to ten “Keeping in Touch” days, commonly known as “KIT days”, during the year period of maternity and adoption leave. The full ten-day entitlement applies even if the employee returns to work early. The ten days are a part of the statutory leave period, not in addition to it. No KIT days, however, may be taken during compulsory maternity leave. A woman is not permitted to work for her employer under any circumstances in the two weeks (four weeks in the case of women working in factories) immediately following the birth.
Employees may, therefore, attend work for up to ten days during the period of statutory maternity or adoption leave without, as a result, bringing entitlement to leave to an end or foregoing payment of SMP or SAP for any week during which they work for their employer. However, if work is performed on more than ten days, entitlement to statutory maternity or adoption leave ends. See When statutory leave ends early, below.
Any work carried out on a particular day, including a single work shift that spans two days, constitutes a “day’s work” – it can be a few minutes or a full day. The nature of the work performed must be the type of work the employee normally performs under the employment contract, but it may include training or any other activity that is undertaken to enable the employee to keep in touch with the workplace.
Although a few minutes of work would have to be treated as a whole KIT day, the legislation specifically allows “reasonable contact” between the employer and employee to discuss matters pertaining to the leave. So, for example, the employer could meet with the employee to discuss return to work arrangements without that being treated as work and thereby taking up a whole KIT day.
The legislation sets no rules regarding
- when during the leave period the KIT days should be taken,
- whether they should be taken singly or in blocks of days, or
- what payment should be made for the work.
These are matters for the employer and employee to agree between them. The KIT days could, for example, be taken as a single period at the start of the leave period (before the birth) or at the end of the leave period. If a woman taking maternity leave is only going to be absent for the first six weeks, they could be taken over the latter four weeks of the six-week period.
The options for payment for KIT days are discussed in a separate FAQ.
To prevent any abuse of KIT days, the legislation makes it clear that
- the employer does not have any right to require an employee to spend any days at work during the statutory maternity/adoption leave period, and
- the employee does not have any right to spend any days at work during the statutory maternity/adoption leave period.
Employees are protected from detrimental treatment or from dismissal on the grounds that they undertook, considered undertaking, or refused to undertake work during the statutory maternity/adoption leave period.
When statutory leave ends early
Statutory leave and statutory pay are separate rights and have different conditions for entitlement. For example, a pregnant woman is automatically entitled to maternity leave (an employment right) but may not meet the conditions for payment of SMP (a social security benefit). Another significant difference is that maternity leave and adoption leave end when the employee returns to work but, if the employee returns early, the maternity or adoption pay period continues for the full 39 weeks. Of course, as the employee is back at work, no SMP or SAP may be paid but, nevertheless, entitlement does not end. So, if, after returning to work, the employee were absent again for one or more whole weeks, the employer would have to resume payment of SMP or SAP.
Employers should take care not to allow or arrange for an employee to work for more than the permitted ten KIT days. As soon as the limit is exceeded, the employee’s maternity or adoption leave automatically ends, the employee is assumed to have returned to work and, as a result, the employee is entitled to full pay under the employment contract. This creates a significant problem for the parties as it is only during statutory maternity or adoption leave that the employer may stop paying full pay and pay SMP or SAP instead. If the employer’s intention in exceeding the ten KIT days was not to bring statutory leave to an end, the parties could agree for the absence to continue – although it would no longer be statutory leave – and for SMP or SAP to continue to be paid. However, that is a dangerous course because the employer is technically in breach of contract by not paying full pay.