What is ‘reasonable contact’ during maternity leave?March 01, 2017
Most employers will be aware of the need to keep in contact with staff members on maternity leave. But are you aware that too much contact with such a staff member may be unreasonable and even discriminatory?
Most complaints about contact during maternity leave are due to a lack of contact, with the staff member complaining that they were not notified of an opportunity for promotion, or were excluded from a staff social event or not included in important consultations. A failure to keep employees on maternity leave informed as to significant changes affecting their position have been found to amount to discrimination, and has also been grounds for successful claims of constructive unfair dismissal.
There is explicit provision for “reasonable contact” during maternity leave in the maternity regulations. This is in addition to “Keeping-in-touch” or KIT days.
However, whilst still rare, claims have been pursued against employers for excessive contact during maternity leave. Examples include an employee being contacted by telephone about work matters by her maternity cover only two days after a caesarean section delivery. In another case, an employee received numerous emails, telephone calls, home visits and requests to attend numerous investigatory interviews whilst on maternity leave. In both examples, claims were brought against the employers for pregnancy and maternity discrimination.
How much contact is ‘reasonable’?
In this context “reasonable contact” is any contact between the employer and employee which is not unreasonable. This description is unfortunately of little help to most employers! In practice, if the contact is excessive and unfavourable to the employee there is a risk of it being unreasonable and therefore discriminatory. However, this means there is no simple ‘one size fits all’ policy to determine exactly what reasonable contact is.
What should employers do?
Communicate. The best method to avoid the potential pitfalls is to talk with your employee prior to them going on maternity leave and discuss the level and type of contact which works for them and for your business. You may consider the frequency of contact, methods of contact and even who in your organisation should be a regular point of contact or “buddy”.
Have a policy. Have a maternity policy giving an outline of the contact options, the role of a “buddy” and how KIT days fit into your reasonable contact planning. Remember KIT days are an option only if the employee agrees; they cannot be forced on an employee.
Be Flexible. Circumstances can, and frequently, will change over the course of a period of maternity leave; what contact is reasonable will change with them.
Keep Minutes. Once you have an agreed plan, or a variation to that plan, keep a written record of what has been agreed.
Need any help?
You are always welcome to make reasonable contact(!) with us, by phone, email, post or even pay us a visit!
We are happy to discuss your business needs and help you with the appropriate policies and training to avoid the potential pitfalls over the employment relationship. Call our expert employment team on 0117 929 0451.