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Keeping In Touch Days: Your Maternity Rights

Specific conditions and rules apply to keeping in touch days, making it important to understand how ‘KIT’ days could work for you and your employer.


What are keeping in touch days?

KIT days are designed to allow you to undertake work, maintain contact with work colleagues and keep abreast of any changes at work that may have taken place in your absence. They offer the opportunity to support employees with a smoother return to work.

You are entitled to agree to up to 10 keeping in touch (KIT) days with your employer throughout your period of maternity leave without bringing your maternity leave or pay to an end.

The ten-day entitlement applies whether you ordinarily work on a full or part-time basis.

Working for only a part of the KIT day will still be counted as a full KIT day. It is not possible to divide the days, for example into 20 half days – each half day would count as a full KIT day.

KIT days are not an automatic entitlement for employees, nor can your employer force you to work them. You have to agree to the KIT days in advance with your employer. Likewise, your employer cannot force or compel you to work a KIT day.

Importantly, if you work more than ten keeping in touch days, it would have the effect of bringing your maternity leave to an end and you would lose your entitlement to statutory maternity pay.

Employees are also allowed to work up to 20 shared-parental-in-touch (SPLIT) days without bringing their shared parental leave or pay to an end.


How much will I get paid for KIT days?

There is no legal guidance or requirement on how much employees should be paid for keeping in touch days. However, your employer must follow the law in other areas, such as under the National Minimum Wage Act, the Equal Pay Act and your employment contract.

Generally, your employer’s approach to KIT days payments should be set out in your employment contract or maternity policy. Alternatively, they can take a discretionary approach. In such instances, employers will have to ensure fair treatment and apply consistency when setting KIT day terms.

As the purpose of KIT days are to preserve your status on maternity leave, you should continue to be paid Statutory Maternity Pay (SMP). SMP is payable for a total period of 39 weeks, where for the first 6 weeks it is paid at 90% of the average weekly earnings, and for the remaining 33 weeks it is paid either at the SMP rate or 90% of the average weekly earnings, whichever is lower. The SMP rate is currently set at £148.68 per week (April 2019).

As a minimum, you must be paid the SMP due for that week. Your employer can offset any pay for KIT days against SMP payments, or make a contractual payment in addition to this but in any event, you cannot be paid a lower amount than what you should receive as SMP.

Any additional contractual payment above SMP should be agreed with your employer before you come into work. In many cases, this may be your normal rate of pay for a full working day.

Payment for KIT days should be made in the same way as your usual contractual pay, in the payroll for the week or month that you worked. This means you should not have to wait until the end of your maternity leave to be paid, unless this would be the next usual date for payroll.

It may be that, given the cost of childcare and travel expenses, it does not make financial sense for you to work a KIT day in light of the level of pay your employer is offering. Since KIT days are optional and your employer cannot compel or force you to work KIT days.


What can I do on KIT days? 

You are permitted to carry out any type of work during a KIT day. Usually, this means any work you would ordinarily perform as part of your role.

You should agree with your employer the work that you will do ahead of the KIT day. For example, KIT days can be used to stay informed about workplace developments, to attend training, conferences, team meetings or work-related events or to carry out work. Most of all, they should be used to help ease your transition back into the workplace.

Working from home could also count as a KIT day, where agreed with your employer.

It is common for mothers to use their KIT days to provide a phased return to work toward the end of their maternity leave, by using the KIT days to work part-time in the lead up to starting back officially.

If you work only part of the day, this should still count as a full KIT day.

Visiting the workplace to see colleagues socially and show them your child would not usually be considered a KIT day unless this has been pre-agreed with your employer as you will be combining the time with doing some form of work-related activity.

One area of concern is where you are doing work during your maternity leave that is different from your usual work and role. In such instances, you should seek assurances that any work carried out during your maternity leave will not affect your right to return to your old job.

Employees on maternity leave are afforded specific protection by law. If you have taken up to six months maternity leave, you have the right to return to your old job, ie the role you were doing when you finished for maternity leave. If you took more than six months’ leave, you have the right to return to the same job unless your employer can show it is not reasonably practicable for you to return to your old job, in which case they must offer you a suitable alternative role.


How many KIT days can I take?

You can work for up to ten keeping in touch days without bringing your Statutory Maternity Pay and period of maternity leave to an end. This also applies if you have more than one job i.e. you can work up to ten KIT days for each job.

If you plan to take all ten KIT days, you should confirm with your employer if you intend to continue your maternity leave after the tenth day.


When can I take KIT days? 

KIT days can be worked at any point during your maternity leave, although you cannot use the KIT days to extend your period of maternity leave beyond the 52-week maximum. Technically this means you can work a KIT day before your baby is born.

The only restriction is that you are not permitted to work KIT days during the two-week compulsory maternity leave immediately after the birth of your child. Note that if you work in a factory, the compulsory maternity period is extended to four weeks.

KIT days can also be taken either during paid leave or unpaid leave and they do not have to be on consecutive days.


What to expect from your employer 

Your employer is expected to maintain reasonable contact with you during your maternity leave, but this should not ordinarily count towards your KIT days.

Your employer has to ensure they are paying you at least the prevailing minimum wage, that payments are made to you in the correct way and on time, ie as part of organisation’s standard payroll system and that you are paid equal pay compared with male colleagues doing work of equal value.

If you decide against coming in to work a KIT day, your employer cannot penalise you or treat you unfairly. Childcare issues and illness commonly arise and the KIT day remains an option for you to turn down without facing any issues with your employer.

If you are considering making an  application for flexible working for your return to work, such as varying your working pattern to allow for your childcare needs or reducing your hours to part-time, KIT days may offer a helpful trial period to allow you and your employer to gauge how workable a new arrangement would be.

During your maternity leave, your employer is required to keep you informed of changes in the organisation and also chances for promotion. You should be informed at the same time as others in the organisation. Where your employer contacts you about such developments, this would not count as a keeping in touch day.


Making the most of your keeping in touch days

KIT days are available to support with employees’ return to work after maternity leave. For employees, this means making the most of the opportunity to shape each day to suit their needs in easing back into the workplace environment and resuming their duties. 

Before making the request to your employer to work KIT days, it is helpful to have ideas about the kind of work and activities you would like to be involved in for each KIT day. For example:

  • Teambuilding activities
  • Strategy away days
  • Training 
  • Attending conferences and client events
  • Helping to recruit new team members
  • Appraisals
  • Budget and planning meetings
  • Project scoping
  • Planning for once you have returned to work 

Do you have a question about keeping in touch days? 

Keeping in touch days offer employees a valuable opportunity to maintain workplace contact and carry out work duties while remaining on maternity leave.

KIT days must, however, be agreed by both parties. Given the level of discretion and flexibility afforded by KIT days to both the employer and employee, it will be important to agree the terms before doing any work. This includes clarifying the number of days you intend to take as KIT days, how much you will be paid, and what you will be expected to do during the KIT days.
KIT days remain optional and you should not be treated unfairly if you cancel a KIT day. 

If you are concerned that you are being treated unfairly by reason of requesting or declining to work KIT days, or for any other reasons relating to your pregnancy, maternity leave or attempting to exercise your maternity rights, you may have grounds for a discrimination complaint. Take advice on your options as the law protects employees on maternity from unfair treatment and dismissal on the grounds of maternity leave or attempting to assert your rights.

DavidsonMorris are experienced employment law specialists offering guidance and support to employees facing unfair treatment at work related to their maternity leave.

If you are concerned about your maternity entitlements or your employer’s failure to meet the requirements, speak to our employment lawyers to understand your rights and options for next steps.

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