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:
- 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.
- 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.
- 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...