Treatment of Bank Holidays whilst on maternity leave

(57 Posts)
Mon7 Wed 29-Apr-09 22:16:34

How should an employer treat bank holidays for an employee who is on maternity leave?

hf128219 Wed 29-Apr-09 22:18:59

I don't quite understand the question! Do you mean do you bank them?

Mon7 Thu 30-Apr-09 08:24:28

Yes, is an employee entitled to add them onto their annual leave if they occur while they are on maternity leave?

flowerybeanbag Thu 30-Apr-09 08:53:08

You are entitled to all your contractual benefits during maternity leave now, including paid leave, so if you normally get bank holidays off paid, then yes you still get them and should be able to add them to your annual leave entitlement.

Mon7 Thu 30-Apr-09 09:43:52

That's what I thought as in the past I've received BH in addition to my annual leave. My contract also states that I will "normally" receive these but HR state that as I am on maternity leave this is not classed as a normal situation. Is there legislation or case law to confirm treatment of BH?

Katelyn Thu 30-Apr-09 09:46:48

No, you get paid for them. I just got back from Maternity Leave and was paid them as they occured.

hotmama Thu 30-Apr-09 09:55:47

I work in local government. Any bank holidays that occur in the first 6 months are added to my annual leave when I go back to work.

This didn't happen when I had dd1 in 2004 but the policy changed in 2006 when I had dd2 - so I did then .

HTH smile

EyeballsintheSky Thu 30-Apr-09 10:04:04

Aha, that explains why my accrued leave was about 5 days more than I expected when I went back to work. They didn't say that's what it was though.

flowerybeanbag Thu 30-Apr-09 10:55:44

There's no specific legislation about bank holidays but there doesn't need to be. As far as your contractual benefits and holiday entitlement are concerned, maternity leave is a 'normal' situation.

See here. At the top of the page it confirms that during maternity leave you get all your normal benefits, and then further down it specifically says that you continue to be entitled to paid holiday throughout as well. There's no reason this wouldn't include bank holidays, they are paid holiday and a benefit, so you get them. Your employer doesn't get to opt out of maternity legislation by putting 'normally' in your contract and then deciding that maternity leave isn't 'normal'. Otherwise employers could put that for all holiday and benefits!

beetlemum Thu 30-Apr-09 22:53:56

Hi flowery and others,I posted a few weeks ago regarding my work refusing to pay me my bank hols or let me take them as extra holiday. Line manager has contacted works solicitors who have said to her in an email:
(sorry its a bit long!...)

“Your query fits in to scenario 3 (as she was entitled to 10 public holidays and 28 days annual leave) so the employee is not entitled to bank holidays. I have provided a full copy of the response from xxx as I thought you may find it useful


From October last year contractual holiday will continue to accrue during AML

In terms of whether there is an entitlement to days off in lieu for bank holidays that fall during maternity leave there are 3 scenarios:

1. If the contract provides:

'Your holiday entitlement is 30 days. This includes any bank holidays that fall during your working week'

then our view is that the employee has a contractual entitlement to 30 days and they will continue to accrue holiday at this rate. It does not matter that 8 of the days are bank holidays.

2. If the contract provides for less than the statutory minimum plus the 8 bank holidays, for example:

'You are entitled to 25 days holiday plus the 8 bank holidays'

then our view is that the employee must continue to accrue at the rate of 28 days to ensure that they receive their statutory entitlement. With regards the remaining 5 days the position, in the absence of case law on the point, is unclear. Our view however is that the employee is not entitled to payment in lieu or time off in lieu. This is because our view is that the bank holidays should properly be characterised by the tribunal as 'a right to remuneration' (as the employee is paid for them) and an employee is not entitled to remuneration during maternity leave (only non-remuneration benefits).

I notice that the standard contract on xxx now gives only 28 days holiday and states that this includes the 8 bank holidays (ie 20 days plus the 8 bank holidays). Clearly in these circumstances the employee would be entitled to time off in lieu for the bank holiday as the bureau would need to ensure that the employee gets her statutory holiday entitlement.

3. If the contract gives employees the whole of the statutory entitlement plus the 8 bank holidays, for example:

'You are entitled to 28 days holiday plus the 8 bank holidays'

our view is the employee is not entitled to either payment in lieu or lime off in lieu for the 8 statutory holidays for the reason set out in paragraph 2 above.”

So it looks like they are saying that they are opting out of the maternity legislation and saying there is no point in going to a tribunal cos the tribunal will say I am not entitled to them???

I was going to just let this lie as I have got to go back in September and I need a job to go back to!

Don't know how best to proceed...

flowerybeanbag Fri 01-May-09 13:54:18

That doesn't make sense at all. Why is a paid day off that happens to take place on a bank holiday 'remuneration', but a paid day off taken at any other time is a 'benefit'. It's not remuneration, it's paid time off, which is a benefit.

The whole point of the legislation is that you get your benefits and paid holiday during maternity leave exactly as you would if you were at work, the principle being that it is sex discrimination if you lose any of your benefits/paid holiday simply because you are on maternity leave. They are saying that because you are on maternity leave, they are taking away one of your benefits, which is sex discrimination.

How the bank holidays are worded in your contract makes no difference.

I can't remember but have you put in a grievance yet? If not, do that, if you've already done that, it might be time for a trip to the CAB. You say you are worried about your job, but if they sack you for claiming maternity rights they'd be in a whole heap of trouble.

beetlemum Fri 01-May-09 17:49:20

Flowery, it makes no sense to me either!

Doubt the CAB can help as I work for them .

I have just rang the ACAS helpline who seem to think the same as work do, advisor said that as I am on SMP I am in effect being paid for my bank holidays but at my SMP rate. If I was to be paid or given them to add on to my holidays then this would in effect be remuneration (Sp?) and of course I am not entitled to my normal wage .

ARG!

flowerybeanbag Fri 01-May-09 18:13:57

Take no notice of ACAS, the number of times they are wrong about maternity stuff is scary - they told someone on here a few months ago that she wasn't entitled to any holiday during her maternity leave hmm. You are certainly not being paid for bank holidays while you are on SMP, that's ridiculous.

I genuinely don't get this 'remuneration' argument. You're not asking to be paid in lieu of them, you are asking to be allowed to take the time off. If it's time off, it's not remuneration. In legal terms there is no difference between holiday and bank holidays, it's all paid holiday, just that some of it you take at a set time. I really don't get why anyone is saying that bank holidays off is remuneration but normal holiday isn't, that's just bizarre in my view.

Have you put in a grievance, I can't remember?

beetlemum Fri 01-May-09 20:00:27

thanks bean
about ACAS, if they don't give proper advice then where can i go,obv the CAB is out lol.
I haven't put in a grievance as yet,have been trying to sort it out amicably w/ line manager via email. I am very unsure about the whole grievance process, as I have been getting conflicting info and don't want to end up jobless or making things awkward for myself when i go back. all I want really is the actual extra holiday, not payment in lieu.
Do you think I should go to a solicitor who specialises in employment and try and get a free half hour or something.

flowerybeanbag Fri 01-May-09 20:51:53

Yes you could consider going to see a solicitor. But he/she will advise you that to take this further you will need to first raise a grievance. Just bear that in mind, because once you've used up your half hour, you'd then have to pay if you want to take further advice should your grievance not be upheld - you will have used up your free half hour already.

You mention again about 'ending up jobless'. Why is that, do you have any reason to think they are trying to get rid of you, or that they would sack you for raising a grievance?

Mon7 Thu 07-May-09 21:04:15

Thanks to everyone who responded to my post. I've queried the treatment again with HR, I'll keep you posted on the response.

footstep Thu 07-May-09 23:07:29

beetlemum

Are you a member of a union?

If not, the CAB service has a national women's group which "aims to support women in the service both formally and informally. It also represents women in the service" - It might be worth contacting them?

You can find details on cablink (search for 'women').

Good luck. Let us know how you get on.

footstep Fri 08-May-09 12:17:12

beetlemum

I meant to add - even if you're employed by a CAB, you can seek advice from another CAB (one of the benefits of each Bureau being an independent charity).

beetlemum Sun 10-May-09 20:50:55

Hi footstep!
I'm not a member of a union.
I don't have access to cablink whilst i am at home. All the passwords were saved on my work computer.
I had thought about going to the CAB in the neighbouring town, i am in two minds really.

Spoke to a different person at ACAS on fri who gave me different advice to the first guy I spoke to. She suggests I speak to the commission for equal rights (i think, made notes on the call but can't lay my hands on them atm!)and/ or get intouch with an employment solicitor. Latest email from my line manager says that if I am unhappy with the "legal ruling"from Cit Advice solicitors then I need to seek my own legal advice.

Flowery: I don't think they are trying to get rid of me. Can you get sacked for
raising a greivance? I don't know anything about putting one in or the likely consequence, what steps do you have to go through to raise a grievance, I have had a quick look on the internet but it seems to have changed, and I'm suffering form baby brain.

Mon7 let me know what happens with your hols and sorry for hijacking your threadblush. best of luck!

flowerybeanbag Sun 10-May-09 21:44:49

No you can't get sacked for raising a grievance, and anyone who tries to sack you for doing so, particularly when the grievance is related to your maternity rights, and effectively about sex discrimination, would have to be completely bonkers, quite frankly.

Your employer must have a grievance policy available to you, but basically you need to write, usually to your line manager, stating that you are raising a formal grievance, then outlining the problem. They then have to hold a meeting to hear your grievance at which you must be allowed to be accompanied by a colleague or TU official, then they have to let you know the outcome, then they must allow you to appeal if necessary.
Basic grievance process.

footstep Mon 11-May-09 11:41:58

beetlemum

Equality and human rights commission helpline

I've sent you a CAT!

beetlemum Mon 11-May-09 21:01:52

footstep.. thanks .. thats the one. Haven't had chance to ring today. Will do tommorow!
Sorry I don't have CAT

beetlemum Tue 12-May-09 13:04:09

Spoke with equality and human rights commission helpline they say only chance i've got is if employees on the sick get to take their bank hols after they return to work. Am looking into this but suspect I know what the answer will be. Just wanted to come back to thread to thank footstep and flowery!

flowerybeanbag Tue 12-May-09 14:05:17

Eh? Not sure what employees who are off sick have to do with it! If you ask me the legislation is quite clear, you must gets your contractual benefits as if you were at work, and paid bank holidays is a contractual benefit. You must also accrue paid holiday as if you were at work, again, bank holidays are part of your holiday entitlement.

AmpleBosom Wed 13-May-09 19:37:11

Just to add to the discussion i asked this question of the HR maternity leave person today and she is saying that i'm not entitled to bank holidays whilst on maternity leave.

She has asked me to send her an email with any links which support my claims. I can find some stuff on the internet but not from what she would probably see as reliable sources. She tells me she has just updated the maternity policy (Making relevant changes relating to the new rules introduced in April 2008 shock)and is waiting for it to be ratified, this would mean her altering it grin. I work for the NHS who you would think would know about this stuff!

Has anyone found anything which i could quote or refer her to?

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