Are employees entitled to be paid their full contractual pay on keeping-in-touch days?
Employees on maternity leave and adoption leave are entitled to work up to 10 keeping-in-touch days without their leave being brought to an end or their statutory pay being affected. Employees on shared parental leave are entitled to work up to 20 days (in addition to any keeping-in-touch days they take during maternity or adoption leave) without their statutory leave or pay being affected. The relevant legislation does not address how employers should deal with contractual pay for employees who work a keeping-in-touch day.
The employer could set out the rate of pay for employees working keeping-in-touch days in the employment contract or it may decide it on a discretionary, case-by-case basis, for example depending on the nature of the work carried out. Employers will need to bear in mind their statutory obligations about paying staff, including the requirement to pay the national minimum wage and their responsibility to ensure that women and men receive equal pay for work of equal value.
If an employer decides to pay all employees their full contractual pay on keeping-in-touch days, it should also decide whether or not any statutory pay will be offset against the contractual pay or paid in addition, where the keeping-in-touch day falls in a period when the employee is receiving statutory maternity, paternity or adoption pay. For example, if an employee earns £100 contractual pay for each keeping-in-touch day, with statutory pay offset against this, if they work one keeping-in-touch day during a week in which they are receiving the flat rate of statutory maternity pay (SMP), they will be paid £151.97 for the week. The £151.97 SMP will be offset against the employee's contractual pay for the week. If they work three keeping-in-touch days during a week, they will be paid £300 for the week. Again, their £151.97 SMP will be offset against their contractual pay for the week.
Employers should bear in mind that there may not be much financial incentive for an employee to work during the leave period if they will earn little or nothing above the statutory pay that they would already have received.