maternityShadow Home Secretary Yvette Cooper has recently told the BBC of her “fight” with Whitehall officials when she took her second bout of maternity leave back in 2004. In an interview on BBC Radio 4’s Woman’s Hour, she commented staff had been “very unsupportive” and had to fight to keep in touch with developments.

Ms Cooper was the first minister to take maternity leave in 2001 and commented that the Department of Health was at that time, very supportive. However upon taking time out to have her third child in 2004, she felt “cut off” by the Department for Communities. But how far do employers need to go to keep in touch with their employees? Where are the lines between cutting off, keeping in touch and harassing?

Pregnancy and maternity is considered a protected characteristic under the Equality Act 2010 and so by treating an expectant or new mother unfavourably because of her pregnancy (or an illness suffered as a result of pregnancy) will constitute discrimination. Likewise, treating her unfavourably because she is taking (or seeking to take) maternity leave will also constitute discrimination.

Since 1 April 2007, women on maternity leave are able to work for up to 10 days without losing their entitlement to statutory maternity pay. These days are known as “keeping in touch days”, or more commonly, “KIT days”. The amount paid and type of work carried out on a KIT day will be agreed between the employer and employee, however it could be anything from a normal day in the office to training days or conferences etc. An employee is under no obligation to work a KIT day, nor is the employer obliged to offer them. If an employee is asked to work a KIT day but refuses, she must not suffer a detriment because of this refusal.

Besides KIT days, an employer may make “reasonable contact” with an employee on maternity leave, for example to discuss return to work arrangements and KIT days etc. What is “reasonable” will very much depend on the individual circumstances, including the employee’s attitude. However, should any promotion opportunities or vacancies arise whilst the employee is on maternity leave, the employer should keep her informed. Employees should also remain on distribution lists for workplace bulletins, social events and training courses etc whilst they are on leave.

Employers should have a comprehensive Maternity Policy in place which deals with keeping in touch whilst on leave. It is also advisable to seek the employee’s views before she goes on maternity leave with regard to how much contact she wishes to maintain, and how she would like to be contacted.

Catharine Geddes, Partner at law firm Lester Aldridge LLP