02nd December 2016

What is reasonable contact during maternity leave?

What is reasonable contact during maternity leave?

Maternity leave is a composite part of many women’s careers that involves the employee taking a prolonged period away from work, sometimes for up to a year. Where maternity leave is not properly arranged, this can have a dangerous impact on the business.

The care and health sectors are both particularly susceptible to this, where the output of the business is often critical. A service user may have specific needs or courses of treatment, only known to a limited number of people or an individual. There is an obvious temptation for the employer to contact an absent mother for answers or clarification when issues arise. But at what point does that contact become unreasonable? And in those circumstances what are the employee's rights?

Employee rights

Section 18 of the Equality Act 2010 sets out:

  • A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.
  • A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

An employee may be able to show that she has been subject to unfavourable treatment where she is contacted inappropriately or excessively during a period of (maternity) leave. However, an employer could advance that any unfavourable treatment was out of necessity, rather than being because the employee was on maternity leave; supposedly because no-one else could answer the query. Without causation, a claim for discrimination arising from maternity leave would fail. There is certainly no prohibition on contacting an employee on maternity leave.

The Equality Act’s predecessor, the Maternity and Parental Leave Regulations 1999, even recognised that either party is entitled to make reasonable contact from time to time, but did not identify at what point the contact becomes unreasonable or the remedies available to an employee in such circumstances.

Harassment

Harassment is unwanted conduct related to certain protected characteristics that violates an employee's dignity or creates an undesirable environment for that employee. A new mother being pestered by her employer while on leave could contend that she was being subjected to unwanted conduct related to the fact she is on maternity leave, but unlike other protected characteristics (race, sex, disability) a woman on maternity leave is not protected from harassment. Alternatively, a mother may claim that she is being harassed due to her sex, maternity being leave that is exclusive to females. The employee could also have a claim for direct or indirect sex discrimination. In such circumstances the necessity of contacting the employee is related to the fact she is a woman on maternity leave. An employer may deflect liability if they could demonstrate that they were acting reasonably; their actions were objectively justified and were a proportionate means to achieving a legitimate aim.

Where contact reaches such a level that it becomes abusive or unbearable, the mother may opt to resign from her position and claim constructive unfair dismissal, on the basis that there has been a breach of the implied duty of mutual trust and confidence. In the most severe cases, such contact may result in psychiatric harm, in which case the employee may have a claim for personal injury.

The employer must remember that the mother remains an employee of the Company, and as such is still owed a number of rights including those relating to consultations or restructuring (i.e. in redundancy) and fair consideration for opportunities or promotions.

Planning

To minimise the risk of problems arising for the business and the employee, employers must proactively plan for maternity leave and ensure adequate cover is in place prior to a period of leave beginning. For integral team members, employers should consider arranging a handover period between the expectant mother and covering staff, or consider carving out some time for the employee to prepare a comprehensive handover guide. Both parties should agree what level and type of contact may be required (and appropriate). Employers should utilise KIT days effectively to keep an employee up to speed with training and developments in the business. Employers should not undervalue the effectiveness of a well thought out staff handbook covering the Company’s position regarding maternity leave, contact and procedure. Setting obligations and expectations from the outset of a matter can avoid upset or misunderstanding later occurring.

What is appropriate in the circumstances may very much be down to personal preference; an employer ought to remember that this is a fundamental life event for their employee and the employer’s role should be to help not hinder the situation where possible. Overall, regular communication is healthy and can help maintain employee engagement and relations. The employer’s role is to strike a balance between safeguarding the business interests, whilst supporting their employee and keeping them happy.

*All information is correct at the time of publishing

Anthony Fox

Napthens LLP – Employment Law Specialist

Anthony is one of our Employment Law Specialists from Napthens Solicitors. Read more

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