April’s rule-change regarding contact between employers and staff on maternity leave could be a major boost or a legal minefield for small firms, says employment lawyer Jeya Thiruchelvam of Harding Evans Solicitors.
 

Each year thousands of women in Wales take leave of absence from their jobs to give birth and nurture their newborns through the early months.

While this is never an easy process for small firms, it’s been a fact of business life for three or more generations. Responsible and well-organised employers have learned to plan and work around it.

It often means the new mother disappears off the radar completely for several months and re-emerge into the same or similar job several months later. Deals are frequently done to enable the returning workers to reduce their hours or work flexible hours, so they can cope with their new family responsibilities.

However, one thing that has previously been off limits for employers has been the ability to contact staff on business issues while they are away on maternity leave. Bosses were worried that a single phone call to check a work-related issue would be construed as harassment.

Similarly new mothers worried that, under the law, if they so much as ‘clocked-in’ once during their maternity leave, this could bring their maternity leave and pay to an end.

From 1st April all of that is changing under the Maternity and Parental Leave and the Paternity and Adoption Leave (Amendment) Regulations 2006, which seek to help both employer and employee.

On the plus side for staff all pregnant employees, regardless of their length of the service, will be entitled to take up to one year’s maternity leave. The current condition requiring employees to have 26 weeks service before they are eligible for extended maternity leave of up to a year, is to be abolished.

This may place a heavier burden on many employers who already struggle to cope without the experience and expertise of key female staff members, particularly in businesses where individual client knowledge and working relationships are critical.

However the new regulations, effective from April, seek to reduce disruption by giving women on maternity leave an entitlement to 10 ‘keeping in touch’ days. These are designed to help them stay up-to-date with developments in the company and the industry. In effect it means they can engage in training and even paid work without bringing their maternity leave or pay to an end.

Perhaps more significantly, employers will be entitled to ‘reasonable contact’ with staff while they are still on leave. However this is a potential legal minefield and the word ‘reasonable’ should not automatically be interpreted as meaning ‘regular.’

If someone is a highly-valued member of staff, with a head full of technical and client knowledge, it’s understandable that bosses might want to pick their brains as soon and as often as possible after the birth.

In order to make effective use of this new right of access, employers should discuss and agree with the person on leave what level of contact is maybe regarded as reasonable and what form that contact should take. Drafting proper handover notes before they go on leave would hopefully minimise the number of occasions on which they need to be contacted.

Inevitably with senior and highly-skilled staff in knowledge-based businesses there will be matters on which they might need to be consulted while they are away. However it is best to discuss with them at the earliest opportunity what pattern this contact should take.

If general agreement can be reached on the frequency of contact and the type of issues on which it is reasonable to consult, that will reduce the scope for dispute.

For example it might be regarded as reasonable to seek the women’s opinion on how a particular client she knows very well might react to a new proposition. However, a tribunal is unlikely to have sympathy for a boss who subjects an employee to a daily blitz of phone calls merely seeking low grade information such as contact numbers or the location of certain files.

The new regulations on ‘reasonable contact’ and ‘keeping-in-touch days’ are intended to avoid alienation between the new mother and her job and to facilitate a smooth return to work. They should not, however, be used as a remedy for the firm’s failure to plan the maternity leave properly.

If it is agreed that the new mother will avail of the ‘keeping-in-touch’ days, then with proper training, these could be used proactively and in a structured way for her to give briefings to colleagues or even to undertake some client contact. This would hopefully reduce the need for frequent calls from the office to the new mother’s home and avoid the friction it might cause.

While the new rules do increase the potential for more female staff to be absent from the workplace for longer periods, they also seek to reduce disruption by doubling the length of notice they must give if they decide to work earlier than originally expected.

If the person on maternity leave changes her mind and opts to come back earlier than planned, she must now give at least eight weeks notice.

Ironically an earlier return can create headaches of its own. If someone has been contracted to provide maternity cover, the firm may end up having to pay two people for the same job and face potential conflict between the two individuals involved.

The law demands ‘at least’ eight weeks notice of an early return to work but it does not prevent employers negotiating contracts which require more notice than that.

This needs to be handled carefully. Contractual flexibility should be negotiated with the person providing cover. This enables the employer to terminate their contract earlier if the new mother decides to return sooner.

While the new regulations overall may present fresh challenges to employers in coping with maternity related issues, they can nevertheless use them constructively and lawfully to manage their staff more effectively.