Maternity leave: five common pitfalls for employers

This year marks 50 years since the UK introduced its first maternity leave legislation through the Employment Protection Act 1975. Recent research by the pregnancy and maternity discrimination charity Pregnant Then Screwed has found that up to 74,000 women every year lose their jobs due to pregnancy or taking maternity leave – an increase of 37% since 2016.

In recognition of the ongoing challenges that maternity leave can present for both employers and employees, we thought it timely to remind readers of some common maternity leave pitfalls to avoid.

1. Keeping in touch

It may be stating the obvious, but it is very important to keep in touch with employees on maternity leave.

Employers may make "reasonable contact" with an employee during maternity leave and should be guided by the employee as to how much contact they wish to have. It is good practice to discuss with an employee in advance how much contact she would like and how she would like to be contacted. Employees should be made aware that there is no pressure to take any action or attend any events during maternity leave.

As a minimum, employees should be informed of any promotion opportunities or vacancies during maternity leave – whether or not the employer believes the employee would wish to apply for them – to avoid potential claims of discrimination and/or constructive dismissal. It is also important to keep the employee informed of any significant organisational changes, such as redundancies (more on this below), restructures or TUPE transfers, and to include them in any consultations.

2. KIT days

An employee can take up to 10 "Keeping in Touch" (KIT) days during her maternity leave, without ending her maternity leave or pay (if applicable). These days can help employees stay connected and ease the transition back to work. KIT days are optional for both employees and employers.

There are no regulations governing the rate of pay for KIT days, which can cause confusion –particularly when an employee is still receiving statutory maternity pay (SMP). As a minimum, employees must be paid at least the National Minimum Wage for hours worked on a KIT day and continue to be paid SMP if applicable. Many employers have policies on KIT days and pay. In the absence of such a policy, it is important to agree on pay for a KIT day in advance. It is also good practice to agree what an employee will do on their KIT day.

3. Pay

Employees on maternity leave may be eligible for SMP (or, in some cases, maternity allowance) as well as enhanced or company maternity pay. There are several potentially challenging issues when it comes to pay and maternity leave:

Pay rises

An employee on maternity leave should receive the benefit of any pay rise she would otherwise have received had she not been on maternity leave.

Employers should recalculate SMP to account for any pay rise awarded after the start of the eight-week reference period for calculating SMP but before the end of statutory maternity leave. This new calculation should be applied from the start of maternity leave, as if the pay rise had taken effect at the start of the reference period. This means the pay rise is backdated for SMP purposes and a top-up payment should be made, even if the employee has exhausted her entitlement to SMP.

If an employer is paying enhanced contractual maternity pay, this can be offset against additional SMP owed as a result of a pay rise, which may mean that no additional SMP needs to be paid.

The impact of a pay rise on contractual maternity pay is less clear-cut. Normally, this will be addressed in an employer’s maternity policy. In the absence of such a policy, the position appears to be that it is sufficient to increase contractual maternity pay from the date the pay rise takes effect, without the need to backdate it.

Bonuses

This is a complex area and depends on whether a bonus is considered to be remuneration.

Generally, bonuses for company performance paid to all staff will not be deemed remuneration and should be paid in full to employees on maternity leave.

Individual performance bonuses will generally be considered remuneration, and a pro-rata reduction can be made to reflect time spent on maternity leave (with the exception of compulsory maternity leave). Bonuses should therefore be paid to reflect the time the employee spends at work before and after maternity leave, as well as during their two weeks of compulsory leave.

Pensions

Employers must continue to make employer pension contributions to employees during ordinary maternity leave and during periods of paid additional maternity leave. Contributions must be paid at the employee’s normal rate of pay (ie not any reduced pay she may be receiving while on maternity leave). Unless a contract or policy provides for something different, employers are not required to make pension contributions during periods of unpaid maternity leave.

In contrast, employees may pro-rate their employee pension contributions to reflect reductions in their pay while on maternity leave.

Termination of employment

If an employee who qualified for SMP is dismissed or resigns after the qualifying week, the employer should continue to pay her SMP for the full 39 weeks notwithstanding the fact that she is no longer employed. It is possible for the employer to pay this as a lump sum termination payment, rather than keeping the employee on payroll for the full period. However, if an employee starts work for a new employer after the birth of her baby, her entitlement to SMP will cease immediately.

It is unlikely that enhanced maternity pay, as a contractual benefit, would continue after the termination of the contract.

4. Redundancy

There is a common misconception that an employee cannot be made redundant while on maternity leave. This is not true, but steps do need to be taken to minimise the risk of allegations of discrimination and/or unfair dismissal.

Consultation

Regardless of the amount of contact an employee wishes to have during maternity leave (as highlighted above), it is crucial to involve them as fully as possible in any redundancy consultation exercise.

The employee should, as far as possible, be informed and consulted to the same extent as other employees. This will include inviting her to a meeting to put her at risk of redundancy (which may be held by telephone) and giving her the opportunity to participate fully in the consultation process, including compliance with any collective obligations.

Alternative employment

Employers should be mindful of the right for pregnant women and new mothers facing redundancy to be offered a suitable alternative vacancy in priority over other employees facing redundancy. This is one of the very few areas where positive discrimination is permitted under UK law. 

From 6 April 2024, this protection was extended to cover women from the point they notify their employer of their pregnancy until 18 months after the birth of the child.

The protection also extends to vacancies with associated employers, although the role must already exist; there is no requirement to create a new one. This protection does not mean that protected employees cannot be selected for redundancy, but a failure to comply with the duty will entitle an employee to claim for automatically unfair dismissal.

It is worth noting that this additional protection only applies if distinct new roles are created as part of the redundancy exercise, for which employees must apply and compete. If affected jobs already exist and are staying the same, but numbers are reducing, the protection will not apply. For more information see our recent blog on determining whether there is a vacancy.

5. Managing an employee’s return to work

If an employee takes 26 weeks of maternity leave or less, they are entitled to return to the same job on the same, or no less favourable, terms. 

Employers sometimes wrongly assume an employee who takes more than 26 weeks maternity leave (additional maternity leave) loses their right to return to their same job. In fact, an employee has the right to return to the same job unless an employer can show it is “not reasonably practicable” for them to do so. Case law suggests a genuine business reorganisation might meet this test, whereas a preference to keep on someone’s maternity cover is unlikely to do so.

If an employer can show it is not reasonably practicable for a women to return to their same job, they are entitled to return to a different job which is both suitable and appropriate in the circumstances, and on terms which are no less favourable. 

Aside from the legal landscape, employers should recognise that returning to work after maternity leave can be a challenging transition and consider what steps can be taken to support employees with their return. Clear communication is key, and managers should be encouraged to schedule regular check-ins to provide support and address any concerns. Employers should also consider how to create a supportive work environment – for example, by pairing returning employees with a peer to assist with the transition, setting up a mentorship programme, and offering training to help employees catch up on what they might have missed during maternity leave.

With thanks to Kezia Battley, current trainee in the team, for her help preparing this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2025