Employers should not forget about their employees on maternity leave at this time of the year.
Invite to Christmas party
The Equality Act 2010 makes it clear that it is unlawful to treat an employee less favourably because of pregnancy or maternity. In my view, such less favourable treatment could include being invited to the office Christmas party. For that reason, if you are inviting all staff to a Christmas party, remember to extend the invite to any employees who are currently out of the office on maternity leave.
Non cash benefits
An employee on maternity leave is also entitled to benefit from all of her terms and conditions of employment with the exception of those relating to remuneration. So she should continue to accrue any non-cash benefits which were available to her during employment, such as life assurance, private medical/dental insurance and annual leave. A failure to allow the employee to continue to enjoy such benefits could result in a successful claim of discrimination.
Although remuneration is expressly excluded from terms and conditions of employment which are to be enjoyed by employees on maternity leave, this does not apply to any global pay rises. If a pay rise which is applied to the whole of the workforce is not also applied to an employee on maternity leave, this would again be unlawful and likely to result in a successful claim by the employee.
The issue of bonuses is slightly more complicated when it comes to employees on maternity leave. If a bonus amounts to commission or profit-related pay and is paid to reward specific performance or attendance at work, this falls within the definition of “remuneration” and, as such, does not generally require to be paid to employees on maternity leave, subject to employees receiving it for the period of compulsory leave which is either two weeks or four weeks. However a bonus which applies to all staff without specific reference to an individual’s performance – for example, a Christmas bonus – will fall to be paid to all employees, including those on maternity leave.
So regardless of whether you gift your employees a bottle of champers, a Christmas ham or a tin of beans over the festive season, give consideration to your intended recipients and, if in doubt, take advice from your solicitor!Simon Allison Partner – Employment Law
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