Keeping in touch (KIT) days have been the centre of much discussion since the recent changes to maternity legislation. This week, Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise on whether employees are entitled to payment when they come into work on a KIT day.

The question:

If an employee who is on maternity leave attends a meeting or comes into work as part of the KIT day arrangements, are they entitled to payment?

Sarah Lee-Boone

Legal advice:

Esther Smith, partner, Thomas Eggar

The regulations regarding keeping in touch days, or ‘KIT’ days as they are now commonly referred to, anticipate that payment for such days will be agreed between the employer and the employee. However, they clearly anticipate that the days will be ‘paid’. This is a deliberately vague provision to enable the parties to reach agreement as to the appropriate level of payment depending on the amount of work done and the requirements of the employer.

Generally speaking this should not cause an issue but it may not be as simple as it sounds, because sometimes employers and employees may be of differing views as to what is reasonable! For example, an employer may take the view that it will pay only for hours worked, and if the employee attends a training session for part of the day on a KIT day, but has to arrange a full day’s child care, they may 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. Also, some employers have voiced objection to paying an employee for attending work on a KIT day when they are receiving full, or enhanced, maternity pay.

So, there is scope for argument in some circumstances but I would hope that common sense and reason would prevail in most cases.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

According to regulation 12A(1) of the Maternity and Parental Leave Regulations, a woman whose EWC starts on or after 1 April 2007 may work during her maternity leave for up to 10 days for her employer without bringing her maternity leave to an end. These are the so-called Keeping in Touch, or KIT days.

During KIT days, the employee can carry out work and may be paid for this. Regulations provide that a woman will not lose her entitlement to Statutory Maternity Pay (SMP) if she does take advantage of KIT days.

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.

So whether there is to be payment for KIT days, and the amount, is a matter for agreement between the employer and the employee. It is to be expected that employees will generally receive their normal contractual rate of pay because it has been argued that a woman working on a KIT day is comparable to a man working normally, and that an equal pay claim ought to be permitted if she is not paid accordingly.

SMP liability in any week is automatically offset by any contractual remuneration paid in respect of that week.

Martin can be contacted at: martin.brewer@mills-reeve.com

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