Guidance from Simon Parsons

Keeping In Touch Policy (KIT)

A number of recent questions have been raised on the operation of KIT days in relation to maternity and adoption leave and pay. After doing some research with various employers on KIT policy, it’s clear that practices are varied, many acceptable and some probably illegal.

Some employees admitted that although they have KIT days, they do not pay any wages to the employee, and others stated that ‘Time off in Lieu’ (TOIL) will only be given.

The findings from the research highlighted the following payment policies:

• Only Statutory Maternity Pay / Statutory Adoption Pay (SMP/SAP) paid - no other pay or entitlements.
• Only SMP/SAP paid (TOIL given for time worked – and many for purely the duration of the time worked – so if 1 hour worked then TOIL of 1 hour is accrued)
• SMP/SAP paid for the week and Contractual Pay is in addition
• Contractual Pay is offset by any SMP/SAP weekly payment
• Contractual Pay is offset by a one day fraction (either 1/5 or 1/7) of the SMP/SAP weekly payment amount

Some employers are also under the impression that any additional contractual payment made to the employee, in addition to SMP entitlement, can be recovered from the government in the same way as SMP/SAP payment itself. So... which is right and which is wrong? Or are they all right?

Reasonable contact and KIT days

During maternity leave employers are allowed to make ‘reasonable contact’ with an employee and equally the employee can make contact with the employer. Employers are allowed to make contact e.g. telephone letter, email or even meetings in the workplace. Equally employers are obliged to keep an employee informed of promotion opportunities and other job related information, such as redundancy situations etc.

Although previously an employee would loose a weeks Statutory Maternity (or Adoption) Pay if they undertook any work (for any duration during a week), the introduction of KIT allowed an employee to come to work as a way of ‘keeping in touch’ with workplace developments and without loosing any SMP/SAP entitlement.

The employee may agree with their employer to undertake up to 10 days work under, their contract of employment, during their maternity or adoption leave without it affecting SMP or SAP (although they cannot undertake work during compulsory maternity leave period, which is 2 weeks after the birth of the baby).

A KIT days work can be any activity and for any duration (which always counts as one day – you can’t have a half KIT day).

An agreement must be made between the employer and the employee on how much they will be paid. Some employers evidently pay nothing or offer ‘Time Off In Lieu’ (TOIL) and I would suggest that this is not correct and may breach employment law, especially inrelation to the National Minimum Wage entitlement in some circumstances.

Generally the payment should be set out in the contract of employment although the employer may decide on a discretionary basis for each case individually – but not to detriment!

If the employee is due SMP/SAP for a week where they undertake KIT, then SMP continues to be paid. However, if the employee does more than 10 days work into her SMP period, then they loose the right to SMP/SAP for that week.

The employer can offset the SMP/SAP payment against whatever contractual pay is agreed between the employer and employee.

For example: if an employee worked 20 hours as KIT (3 days) and their normal contractual hourly rate is £10 per hour (so £200 is due for the work undertaken) and their weekly SMP/SAP amount entitlement is now £117.18, then the employer is entitled to reduce the £200 due in wages by the £117.18 SMP/SAP amount therefore leaving a residual payment of £82.82. Employers are not obliged to offset in this way but it is acceptable to do so. The employer would make the normal recovery from Government in relation to the £117.18 SMP/SAP payment only. The employer will fund the additional wages due.

An employee can only work a KIT day if desired and the employer agrees to it. The employer cannot force the employee to work against their wishes, nor can an employee insist that an employer allows a KIT day. Either way, it is illegal for the employer to treat an employee unfairly or dismiss because of a disagreement about KIT days. If an employee believes that they have been treated unfairly then they may resign and claim constructive dismissal, raise a grievance against the employer which may result in a tribunal case for detrimental treatment, unfair dismissal and possibly sex discrimination.