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09 December 2016

Contact during maternity leave: what is ‘reasonable’?

10 mins

An employee complaining about 'unreasonable contact' during maternity leave faces challenges in framing a legal claim.  Nonetheless, it is important for employers to strike the right balance and ensure that the contact they make is 'reasonable'.

Background

We recently worked together on an employment tribunal claim brought by a woman who alleged that she had been discriminated against during her maternity leave. She complained that throughout her maternity leave she had received emails and telephone calls from colleagues at work asking for her help. She had also been contacted during the four weeks immediately following the birth of her child, visits were made to her home and she attended several lengthy investigatory interviews at work. While the claimant was keen to help her colleagues, ultimately she felt harassed and intruded upon, and eventually made a formal grievance saying it was discrimination.

The question of unlawful contact during maternity leave

Was the employer’s contact with the claimant unlawful? The claimant certainly felt discriminated against and alleged in her grievance that the contact was breaching her right to be on maternity leave and damaging her mental and physical health. The question for us was whether the treatment could be unlawful, and in breach of the Equality Act 2010 or some other provision of law. Does the law expressly prohibit excessive contact with a woman on maternity leave? The answer is, ‘No’. In fact, the only reference to this in the legislation relates to the employer’s entitlement to initiate contact, as opposed to the employee’s entitlement to privacy. Reg 12A(4) of the Maternity and Parental Leave etc. Regulations 1999/3312 reads: ‘Reasonable contact from time to time between an employee and her employer which either party is entitled to make during a maternity leave period (for example to discuss an employee’s return to work) shall not bring that period to an end.’ When read carefully it is clear that the purpose of this regulation is to prevent the ‘maternity leave period’ from inadvertently being brought to an end by contact. ‘Reasonable contact’ isn’t defined in the regulations and no rights or obligations arise from reg 12A(4). What is ‘reasonable contact’? And what are the parties’ entitlements? One way to approach this is to consider what kind of contact is unreasonable. The starting point is the Equality Act 2010. 

Pregnancy and maternity discrimination

‘Pregnancy and maternity’ is included among the nine protected characteristics in s.4 of the Equality Act, and s.18 sets out the unique protections for women with this protected
characteristic. They include:

  • the right not to be treated unfavourably because of pregnancy, pregnancy-related illness or because of being on compulsory maternity leave – s.18(2)-(3); and
  • the right not to be treated unfavourably because of exercising the right to ordinary or additional maternity leave – s.18(4). Such women are also protected in the normal way from unlawful victimisation under s.27.

However, they are not covered by the other standard prohibitions on discrimination. For example, you cannot bring a claim for:

  • indirect discrimination where the PCP disadvantages pregnant women or women on maternity leave (s.19(3));
  • direct sex discrimination where the discriminatory treatment is related to pregnancy, pregnancy-related illness or maternity leave – s.18(7); and
  • harassment related to pregnancy or maternity – s.26(5). Was the excessive contact in our case a breach of one of the claimant’s rights under the Act? Was it ‘unfavourable’ treatment because she had taken maternity leave falling within s.18(4)? Although we were fairly confident that the treatment was ‘unfavourable’, we were less confident that we could persuade a tribunal that the treatment was ‘because’ the claimant had taken maternity leave or was on maternity leave.

The employer was ready to say: ‘No, it was because we needed help from the claimant specifically; the claimant was the only person who could answer our questions.’ Clearly there would be important factual arguments as well as legal ones to decide the merits of this kind of defence. Considering the wording of s.18(4), we can say that an employer who makes excessive contact with an employee on maternity leave is likely to breach the Act where the treatment is unfavourable and the reason for the treatment is the employee being on maternity leave. For example, a line manager who sent emails frequently to their personal assistant on maternity leave complaining about their dissatisfaction with the staff member covering their duties and the personal assistant’s absence would be very likely to breach s.18(4).

​The case law

Turning to the case law, we found one example where an employment tribunal had upheld a claim for maternity discrimination partly because the employer had failed to make proper arrangements for reasonable contact during maternity leave: Stone. In this case, the claimant was a hospital manager.

Two days after her caesarean section, her maternity leave cover began contacting her about work and putting her under pressure to respond. The tribunal panel were particularly concerned that the claimant had been contacted during the two-week compulsory maternity leave period and noted that this potentially amounted to a criminal breach of the prohibition in s.72(1) of the Employment Rights Act 1996: ‘An employer shall not permit an employee to work during a compulsory maternity leave period.’

They found that the treatment was unfavourable and, in the absence of a non-discriminatory explanation, the reason for the treatment was her maternity leave. The contact was discriminatory under s.18.However, it will often be the case that the employer has some genuine, non-discriminatory reason for contacting the employee, and the maternity leave is merely part of the factual context. In Indigo Design, HHJ Richardson confirmed that the question for the tribunal is whether the protected characteristic operated on the alleged discriminator’s mind, consciously or unconsciously, to the extent that it had a ‘significant influence’ on the discriminator’s conduct. It is not a ‘but for’ test – so it is not enough to say that but for being on maternity leave, the claimant would not have received the unwanted contact. Indeed, the tribunal in Indigo Design was criticised for adopting such an approach. What about cases where there are a number of different factors influencing the employer’s decision to make contact? If the employer has mixed motives and maternity or pregnancy is only a part of the reason that it treated the employee unfavourably, the treatment will still be unlawful. In Keohane, a police dog handler’s dog was reallocated when she went on maternity leave. When she came back to work the dog was not returned to her and she claimed that this was unfavourable treatment because of pregnancy in breach of s.18(2).

Langstaff J commented at para 36: ‘The fact that the needs of the Metropolitan Police to keep Nunki Pippin [the dog] operational may have been a major, or indeed the major, reason for the decision does not mean to say that the claimant’s pregnancy was not also a cause of it.’

Other potential claims

If the unreasonable contact was not obviously because the claimant was on maternity leave, but for another reason, the claimant could alternatively advance a claim for sex discrimination. She could argue that the contact was harassing and, because it happened during maternity leave, it was related to being a woman, ie sex. This would be a claim for harassment prohibited under s.26 of the Act. In that section, the words, ‘related to’ mean a connection or association with gender (rather than a causative link as used to be required). Alternatively, an employee could argue that excessive contact was direct or indirect discrimination because of sex (ss.13 and
19 of the Act). In some circumstances, the employee may also have the option of resigning and claiming constructive unfair dismissal. To justify resignation, the nature of the contact would have to have been so excessive or abusive that it seriously damaged or destroyed the relationship of trust and confidence. 

If stress levels resulted in a psychiatric injury, there may also be a personal injury claim. Whether these are useful routes for a claimant will depend on the facts of the case.

Striking a balance for reasonable contact

In our experience, claims about excessive contact are rare. The more common complaint is that the employer did not contact them enough, they were not notified of an opportunity for promotion, they were not invited to the summer day out, or they were not included in a staff consultation. Many employers will find it difficult to strike the right balance between respecting their employee’s right to be on leave and making sure they don’t discriminate against them by not keeping them informed about developments at work. These potential pitfalls can be avoided if the employer talks to the employee well in advance of the maternity leave commencing to discuss the level of contact that will suit both parties. The objective is to clarify what level and type of contact would be ‘reasonable’ in the circumstances. A maternity leave policy should include a ‘keeping-in-touch’ section that can be referred to for guidance. However, different employees will feel differently about being contacted and how that contact is made. The discussion should be minuted and a written plan agreed. The plan can then be reviewed and amended during maternity leave if necessary. For example, if the mother or baby should develop health problems, the mother’s capacity to stay in touch with work is likely to be reduced. The amount of contact that is reasonable will change over the course of the maternity leave. As a starting point, expecting the employee to deal with work emails during the month after giving birth (and certainly during the compulsory two-week maternity leave period) would be unreasonable. As the maternity leave progresses, the balance will shift towards getting ready for a return to work. Contact in order to arrange keeping in touch (KIT) days will normally be considered reasonable. Employees on maternity leave may take up to 10 KIT days under regs 12A(1) and (7). However, employers have no right to demand that the employee use KIT days and applying pressure on an employee to work KIT days could be discriminatory. At a minimum, employers should keep employees on maternity leave informed of any significant changes that may affect their position at work. In Visa International, the claimant had resigned because her employer had failed to inform her of a promotion opportunity that she would have wanted to apply for. She brought successful claims for discrimination and constructive dismissal. The EAT upheld the employment tribunal’s conclusion that the employer’s failure to inform the employee about the opportunity breached the  implied term of trust and confidence and repudiated the contract. It is usually reasonable and advisable to contact employees regarding relevant vacancies and other significant developments such as reorganisations and restructures. However, the style and timing of the communication should be sensitive to the maternity leave. Finally, it is important to avoid inadvertently using an employee’s pregnancy or maternity leave as a period to consider pre-existing problems, such as poor performance or attendance.

In almost all cases it is better to address difficult issues as soon as possible after they arise to clarify the employer’s expectations and employee’s responsibilities. There is no one-size-fits-all policy, but advance discussions, a degree of flexibility, and a common-sense awareness of the needs of the employee and her family will go a long way to protect the trust and confidence in the relationship and avoid potential complaints.

Nick Fry of Bindmans LLP and Rachel Barrett of Cloisters.

This article was first published on the ELA Briefing, December Edition. 

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