Reasonable contact during maternity leave
Natalie Ruane explains what is "reasonable" when contacting an employee during their maternity leave.
A recent case in the employment tribunal concerns a claim brought by a woman who alleged that she had been discriminated against during her maternity leave.
She complained that she had been contacted continuously throughout her maternity leave by colleagues asking for help with certain matters/tasks. Colleagues would often contact her by email and telephone to ask questions. In addition, visits were made to her home and she attended several lengthy investigatory meetings. Some of this contact took place within the four weeks immediately following the birth of her child. Initially the employee was keen to try and help her colleagues; however she later felt harassed and submitted a formal grievance.
This raises the question of whether the contact during maternity leave was unlawful and what level of contact would amount to discrimination.
There is no legal provision that expressly prohibits excessive contact with a woman on maternity leave. However, it may well be that excessive contact during maternity leave could amount to discrimination under the Equality Act 2010. “Pregnancy and maternity” is a protected characteristic under the Act and specifically women must not be treated unfavourably because of pregnancy, pregnancy related illness or because of being on compulsory maternity leave, or exercising the right to ordinary or additional maternity leave.
It is likely that the excessive contact in this case would be unfavourable treatment; however, the individual would also have to show this unfavourable treatment was because she had taken maternity leave or was on maternity leave. In the absence of a non-discriminatory explanation for the contact, then it is likely to be because of her maternity leave. It was argued by the employer that the contact was because they needed help from the employee specifically and she was the only person who could answer the questions. Whilst that may be the case for some contact, there would need to be significant factual evidence to show that was the case for all of the contact made especially to the level experienced in the particular case mentioned above. In addition, the excessive conduct may well amount to harassment related to pregnancy or maternity.
In reality, claims about excessive contact during maternity leave are rare. The more common complaint is that the employer did not contact the employee enough, meaning they were not notified of promotion opportunities, not invited to work social events, or not included in a consultation process. This makes it difficult for employers as they must try to strike the balance between respecting the employee’s right to be on leave and making sure they do not discriminate by excluding them from updates and developments in the workplace. We have set out below our key tips to avoid these potential pitfalls:
- Discuss with the individual the level and method of contact in advance of the start of maternity leave period.
- This discussion should be minuted and a written plan agreed. This plan may be reviewed and amended once maternity leave begins. For example, if the mother and/or baby suffers from health problems then the contact may well reduce.
- The amount of contact that is reasonable will change over the course of the maternity leave. It would be unreasonable to expect a mother to deal with work emails or queries during the first month after child birth. However, as the maternity leave progresses; the balance is likely to shift towards getting ready for a return to work.
- Employees on maternity leave can take up to 10 keeping in touch (KIT) days. However, employers cannot demand that the employee uses these days and pressurising an employee to work KIT days could be discriminatory.
- At a minimum, employers should ensure they inform the employee of any significant changes during the maternity leave period that may affect their position at work on their return.
There is no one-size-fits-all policy; therefore, employers should make sure they have advance discussions with the employee to find out the best approach for her and her family. This will help to set the expectations for contact during maternity leave and help to avoid any potential complaints.
If you have any questions on reasonable contact during maternity leave, please contact Natalie Ruane at firstname.lastname@example.org.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.