Our company’s policy is to offer only statutory maternity pay, with no enhanced company maternity pay scheme in place. However, I have been approached by a manager who wants to provide enhanced maternity pay for a high-performing employee in her team. How do I handle it?

Lindsay Gibson writes:

There will be no problem with offering enhanced maternity pay to the high-performing employee, provided a couple of precautionary steps are taken. 

The risk with providing the enhanced maternity terms to the high-performing employee, is that employees taking maternity leave in the future could try to argue that they too were entitled to receive the enhanced terms instead of the statutory minimum. The basis for such an argument would be that the enhanced terms are now implied into employees’ contracts as a matter of “custom and practice”. However, in order for a policy adopted by management to become a term of employees’ contracts on the grounds that it is an established custom and practice, it must be drawn to the attention of the employees, and have been followed without exception for a substantial period of time, (i.e. “reasonable, notorious and certain”).

Therefore, in order to minimise the risk of the enhanced terms becoming part of the employees’ contractual entitlement, you should offer them to the high-performing employee as a “one-off”. You should ensure that in the future, you do not offer the same terms as a matter of course to other employees who are taking maternity leave, or, indeed, in each case when dealing with an employee who has attained a certain standard of performance. You should also ensure that you do not draw to the attention of your other employees, the fact that you are offering enhanced terms to the employee in question. You should also ask the employee to keep this fact confidential.