Maternity Leave and Statutory Maternity Pay

Keeping in Touch days

Currently a woman will lose a weeks Statutory Maternity Pay if she does any work (however little) in a maternity pay week under her contract of service for the employer paying her SMP.

The introduction of 10 (ten) "Keeping in Touch" (KIT) days will allow a woman to do a limited amount of work under their contract during the MPP for the employer paying them Statutory Maternity Pay and retain her SMP for that week. Any work done under her contact on any day will count as a whole KIT day. In other words if the woman attends work for a one hour training session for example she will have used one of her KIT days. There are no restrictions on when KIT days can be used for SMP although the maternity leave regulations prohibit a woman from working for two weeks after childbirth. So it is entirely a matter for the woman and her employer how and when KIT days are used during her maternity pay period.

Once those days have been used up, the woman will once again lose a weeks SMP for any week in which she does any work under her contract of service for the employer paying her SMP. So, to be clear, if a "week" in the Maternity Pay Period contains only "KIT" days, SMP will be retained. If a "week" contains, for example, the last of the "KIT" days and also another day or days of work for the employer paying SMP, the woman will once again lose that weeks SMP.

There are no changes to the rules where the woman works for someone else during the MPP. If a woman starts work or returns to work after the baby is born, for an employer who did not employ her in the qualifying week (the 15th week before the EWC), then the employer’s liability to pay SMP ends from the start of the SMP pay week in which the woman began such work.

If however she works for another employer, who employed her in the qualifying week, either before or after the birth, the employer paying SMP to her should carry on paying it.

If a woman does some work under her contract of service for the employer paying her SMP, it follows that the woman will be entitled to contractual pay for the work done. The amount of pay is a matter for agreement between employer and employee but the minimum that must be paid for the week in which the KIT day falls is the SMP rate the woman is entitled to for that SMP week.

No change has been made to the normal SMP offset rules so that, as now, the employer will count any contractual pay due for an SMP week as meeting his or her SMP liabilities for the same week. Or, conversely will count SMP due for a week against his or her contractual pay obligations for the same week.

So let us be clear that when a woman chooses to take advantage of a KIT day she retains her SMP for that week where currently she would lose it. The minimum she must receive therefore is her SMP and the normal offset rules will apply.

For example, if a woman earns £50.00 for a KIT day, under the current regulations she would simply receive £50.00 for that week – having lost her SMP as she had done work under her contract. Under the new Regulations she will now be able to retain her SMP, although the £50.00 earned will be offset against this, meaning she will receive £108.85 for the week. If she works for three KIT days in the same week and earns £150.00 she will receive £150.00 – her SMP being offset, as now, against contractual pay paid for the same week. In both cases the employer will be able to reclaim the normal amount of SMP from the Government.

Because the basis on which KIT days are worked is by agreement between employer and employee, they can agree that a woman will be paid any amount for a week in excess of the SMP rate to reflect the additional work done. It is therefore very important that both parties are clear how contractual payment for KIT days will work, and how much pay the woman will receive in respect of that week.

Maternity Leave & Statutory Maternity Pay business advice Crown Copyright © 2003-2011

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