I have an employee currently on maternity leave, however I need her to attend some in-house training with the rest of the team. She has agreed to both the date and the training but is demanding that I pay her for the hours she works. I have told her I am already paying her 39 weeks of maternity pay and that should be good enough. I also understand that paying her would end her maternity pay entitlement.
Peter replies:
An employee on maternity leave can work for her employer for up to 10 days by mutual agreement, without losing Statutory Maternity Pay (SMP). Working on the ‘Keep in touch’ (KIT) day will not bring an employee’s maternity leave or pay period to an end, as was the case before KIT days were introduced in 2007.
Payment for KIT days is not dealt with clearly under legislation. This is a deliberately vague provision, to enable the parties to reach agreement on the appropriate level of payment, depending on the amount of work done and the employer’s requirements. Employers should clarify this point, (ideally prior to the KIT day) if an employee requests, or is invited to work on a KIT day.
The starting point for determining pay for a KIT day is to consider the employee’s contract of employment – does this give any indication as to pay due? If not, employers must consider their statutory obligations in respect of pay, such as:
- ensuring pay is at least National Minimum Wage (NMW) for each hour that the employee works
- ensuring pay is equal to that of their male colleagues for the time spent at work.
Once this has been established, SMP can be ‘topped up’ to the amount determined for the KIT day, or be paid in addition to this. Most employers will make payment for KIT days on the basis that during these days the employees should be paid at their normal rate. This would be calculated either as an hourly or daily rate of pay, as they are carrying out work for their employer, under their contract of employment. Whatever amount of money is paid by the employer in respect of KIT days, the employer will continue to be able to recover funding for the SMP paid, as normal.
Usually payment for KIT days does not cause an issue, but sometimes employers and employees may hold differing views as to what is reasonable! An employer may take the view that it will pay only for hours worked. To attend a training session for part of the day on a KIT day, an employee may have to arrange a full day’s child care, so would expect payment of a full day’s pay. Indeed, some employees may be of the view that they should be entitled to payment of salary and childcare costs if they are to work during their maternity leave period.
You are not the first employer to have voiced objection to paying an employee for attending work on a KIT day when they are receiving full, or enhanced, maternity pay, but you are wrong and I would hope that common sense and reason would prevail. You may wish to make it clear that any payment made for KIT days will be set off against any SMP (or contractual maternity pay) liability. This may not be acceptable to the employee who has a right to be paid to stay at home.
It is important you are consistent, so be careful about setting a precedent in relation to pay for KIT days for future pregnant employees. Remember to, that in additional to maternity leave, KIT days also apply to adoption leave and additional paternity leave.
To recap:
- Working on a KIT day will not bring an employee’s maternity leave or pay period to an end.
- An employee on maternity leave can work for her employer for up to 10 days by mutual agreement.
- Employers should reach agreement on the appropriate level of payment, (ideally prior to the KIT day) if an employee requests, or is invited to work, on a KIT day.
- Make sure you are consistent.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. Before you take any action make sure that you know what you are doing, or call us for specific advice.
