Employees on maternity leave have the right to take up to ten optional keeping in touch days without impacting their maternity entitlements.
This guide for employers details the rules on keep in touch days, also known as KIT days.
What are keeping in touch days?
Keeping in touch days allow employees on maternity leave to work without bringing their maternity leave or pay to an end.
KIT days are designed to allow employees on maternity leave to undertake work, maintain contact with work colleagues and keep abreast of any changes at work that may have taken place in their absence. Fundamentally, KIT days offer the opportunity to support employees with a smoother return to work.
How many keep in touch days can employees take?
Employees can take up to 10 keeping in touch days during their period of maternity leave. The ten-day entitlement applies whether they ordinarily work on a full or part-time basis.
Working more than ten keeping in touch days would have the effect of bringing the employee’s maternity leave to an end and they would lose their entitlement to statutory maternity pay.
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.
Who can take keeping in touch days?
KIT days are not an automatic entitlement for employees. They should be agreed in advance between the employer and employee, with the employee requesting to take the KIT days.
Are KIT days compulsory?
Keeping in touch days are optional and should be agreed in advance by both the employer and the employee.
Employers cannot penalise employees who opt not to take keeping in touch days. Childcare issues and illness commonly arise and the KIT day remains optional for the employee, without the risk of issues with their employer.
When can KIT days be taken?
KIT days can be worked at any point during an employee’s maternity leave. The only exception is that employees are not permitted to work KIT days during the two-week compulsory maternity leave immediately after the birth of their child. For factory workers, the compulsory maternity period is extended to four weeks.
KIT days also cannot be used to extend the period of maternity leave beyond the 52-week maximum.
KIT days can also be taken either during paid leave or unpaid leave and they do not have to be on consecutive days.
Are employees paid for KIT days?
There is no legal guidance or requirement on how much employees should be paid for working keeping in touch days. However, employers have to follow the law in other areas, such as under the National Minimum Wage Act, the Equal Pay Act and any relevant terms of the employment contract.
As the purpose of KIT days are to preserve the employee’s status on maternity leave, they 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 employer can offset any pay for KIT days against SMP payments, or make a contractual payment in addition to this but in any event, the employee cannot be paid a lower amount than what they are entitled to receive as SMP.
Many employers offer additional contractual payments for keeping in touch days above SMP as an employee benefit, such as paying the employee’s normal rate of pay per day for each keeping in touch day worked. These terms would ordinarily be set in the employee’s contract.
In most cases, the employer’s approach to KIT days payments will be set out in the employment contract or the organisation’s maternity policy. Alternatively, they may take a discretionary approach. In such instances, employers will have to ensure fair treatment and be consistent when setting KIT day terms.
It’s important that payment and pay rate for keeping in touch days are agreed and confirmed between the employer and employee prior to the KIT day taking place.
Payment for KIT days should be made in the same way as the employee’s usual contractual pay, in the payroll for the week or month worked. This means the employee should not have to wait until the end of their maternity leave to be paid, unless this would be the next usual date for payroll.
How to use KIT days
During keeping in touch days, employees can carry out any type of work. As such, it’s best practice to agree with the employee what they will be doing during their KIT days.
Keeping in touch days can be used to carry out work they would ordinarily perform as part of their role. They can also be used to stay informed about workplace developments, to attend training, appraisals, conferences, team meetings or work-related events. Working from home could also count as a KIT day, where agreed with the employer.
Most of all, keeping in touch days should be used to help support the employee’s transition back into the workplace.
In practice, KIT days are commonly used as part of a phased return to work toward the end of an employee’s maternity leave, with the KIT days used to work part-time in the lead up to starting back at work on their usual, permanent basis. For example, the employee could agree with their employer to work for two KIT days a week in the five weeks preceding the end of their maternity leave.
What doesn’t count as a KIT day?
It’s also important to understand what would not count as a KIT day.
Employees ‘popping in’ to work to visit or see colleagues socially would not usually be considered a KIT day, unless this has been pre-agreed with the employer as combining the time with doing some form of work-related activity.
KIT days & SPLIT days
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. SPLIT days are in addition to keeping in touch days.
Employer obligations during maternity leave
Employers are expected to maintain reasonable contact with employees during their maternity leave, but this should not ordinarily count towards KIT days.
During the period of maternity leave, the employer is required to keep employees informed of changes in the organisation such as opportunities for promotion. Employees on maternity leave should be informed at the same time as others in the organisation . When the employer contacts employees on maternity leave about such developments, this would not count as a keeping in touch day.
Employees on maternity leave are afforded specific protection by law. If an employee takes up to six months maternity leave, they have the right to return to their old job, i.e. the role they were doing when they finished for maternity leave.
If they took more than six months’ leave, they have the right to return to the same job unless their employer can show it is not reasonably practicable for them to return to their old job, in which case they must offer a suitable alternative role.
Employers must also ensure they are paying employees on maternity leave at least the prevailing minimum wage, and that payments are made in the correct way and on time, i.e. as part of the organisation’s standard payroll system.
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 intended to be taken as KIT days, how much the employee will be paid, and what they will be expected to do during the KIT days.
KIT days remain optional and employees should not be treated unfairly if they cancel a KIT day.
If an employee believes they are being treated unfairly by reason of requesting or declining to work KIT days, or for any other reasons relating to their pregnancy, maternity leave or attempting to exercise their maternity rights, they may have grounds for a discrimination complaint.
Taking process 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’ experienced employment law specialists offer guidance and support to employers on managing the risk relating to pregnancy and maternity including effective and lawful use of keeping in touch days. For expert advice, contact us.
Keeping in touch days FAQs
What is keep in touch days?
Keep in touch days allow employees on maternity leave to work without affecting their maternity entitlements.
Do keeping in touch days have to be full days?
KIT day hours should be clarified and agreed in advance between the employee and employer, but typically, employees would work their usual working hours on a KIT day. KIT days cannot be taken as half days.
How many KIT days can I take?
You can work up to ten keeping in touch days without bringing your Statutory Maternity Pay and period of maternity leave to an end.
What are the benefits of keeping in touch days?
KIT days allow the employee to stay informed about developments at work can help with the transition back into the workplace.
Last updated: 19 May 2023