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?

StaceyJane Wed 13-May-09 20:15:44

Hi,

I just wanted to say that I work for local government. When I went back to work in January 09 having been on maternity leave since April 08 I was able to add all the bank holidays that had occurred during my OML onto my annual leave. Had my baby been born after October 2008 (when the law changed?) I would have been able to add all the bank holidays that had occurred during my AML as well. Fortunately this was all clearly outlined on my work's HR intranet site otherwise I would never have known as my manager clearly didn't when I told her about it!

Treats Wed 08-Jul-09 12:45:38

Just to revive this one - as I've been looking at it in advance of going on mat leave in 2 months' time.

The three different scenarios quoted by the solicitor are basically three different ways that a contract could be drafted to reflect holiday entitlement and what your contract says will determine whether you get BH added or not.

Your contract could say that you have 28 days holiday (the statutory minimum for a full time worker since April this year). This is your contractual entitlement. it might then say that you get paid bank holidays in addition to this - so not strictly a benefit - just part of your normal remuneration.

On the other hand, your contract might say (as mine does) that you get 33 days holiday a year, but that you must take 8 of these days on the bank holidays. Therefore, my contractual entitlement to holiday benefits is 33 days.

So because BHs are part of my holiday benefit, I'm allowed to add them on to my mat leave. If BHs were additional to my holiday benefit, I wouldn't be able to. I'll be off from September to April, and will accrue 5 BH days in that time, which I can add to my next year's holiday entitlement when I return.

Does that make sense? Hope that helps someone.

PavlovtheForgetfulCat Wed 08-Jul-09 12:53:31

Oh I am reading this with interest. I sort of presumed I would lose those bank holidays that occur while I am on maternity leave?

I checked about bank holidays that occured while I was off sick, and I lose them - HR said that I would get them back if they were annual leave, but that full time staff would not get them back, therefore I would not get them back. I sort of presumed that I would lose the days that occured for example at Christmas. Ie my annual leave is 32 days, of which 6 are BH, I have to take them on bank holidays but as I am not at work, I do not get to take them.

So, is that right or wrong?

And, my contract states nothing at all about bank holidays as this was not law when I was employed full time. I have not ever received a new contract relating to my part time hours as part of my flexible working.working agreement so there is nothing to indicate whether my bank holidays are AL + BH or AL, of which x days must be taken as bank holidays.

I am very confused now. I shall re-read all the posts and see if I can become un-confused grin

flowerybeanbag Wed 08-Jul-09 12:55:48

Have to disagree there treats.

If someone contract says they are entitled to 28 days 'holiday' and that they are also entitled to 8 paid bank holidays off as well, I can't see how the 8 paid bank holidays bit of the contract are not a contractual benefit? If it says in the contract that the person gets 8 days off paid on bank holidays, then surely that's a contractual benefit?

Just because they are not rolled into the holiday entitlement makes no difference as far as I can see. Women are entitled to all their contractual benefits during maternity leave, including but not limited to paid holiday.

I know it makes no difference to you as your contract is worded such that it's all included in your holiday entitlement anyway, but I just wanted to register that I disagree that paid time off on bank holidays isn't a contractual benefit - to me, if it's listed as a benefit in the contract, then it's a contractual benefit, and therefore something the woman continues to benefit from during her maternity leave.

PavlovtheForgetfulCat Wed 08-Jul-09 13:01:57

Oh and I did not get any BH returned to me when I returned from maternity leave in 2007 last time!!!! Oh well, guess it is too late to claim that back now grin

Treats Wed 08-Jul-09 14:04:44

Hi flowerybeanbag - happy to be disagreed with smile. As you pointed out, I'm better informed about my own situation, so probably shouldn't comment on others' contracts. I think I was just trying to make sense of the three scenarios that beetlemum posted and might have assumed that the difference was in whether the BHs were included as part of your holiday entitlement or were added on as an extra. As you say, it's all contractual benefit.

The bit that I did understand from beetlemum's post is that all full time employees are entitled, by law, to at least 28 days' holiday, so whether your holiday entitlement includes BH or not, your employer can't refuse to add any BH that occur during your mat leave to your holiday entitlement if it means that you end up with fewer than 28 days holiday.

flowerybeanbag Wed 08-Jul-09 14:10:42

Yes absolutely, all f/t employees get 28 days now. Lots of employers used to give 20 or 25 days holiday and then bank holidays on top. As legislation has changed to increase the basic minimum to 28 days, many employers haven't amended holiday entitlement because the fact that bank holidays can be included in the 28 days means they don't need to. As long as people actually get 28 days off it doesn't matter whether a proportion of those are expressed as annual leave and a proportion as bank holidays.

But in those circumstances, even if an employer felt they had an argument that was no contractual entitlement to bank holidays, there would still be a statutory entitlement to 28 paid days off even during maternity leave.

But surely as you were on leave on that actual BH day, then you received a day off that you were paid for at the time as you were being paid maternity pay. So therefore there is no additional entiltement (unless your BH days are incl within your 28 statutory days that is).

flowerybeanbag Wed 08-Jul-09 14:36:18

You could apply the same argument to normal annual leave though thehairybabysmum. Maternity leave is something different to paid leave.

If you could say by being on maternity leave and receiving SMP on a day that would normally be taken as a bank holiday the woman has received the benefit of that particular paid day off, you could also argue she's had all her contractual holiday as well. Following that argument the woman was on 'leave' and was receiving some 'pay' for more than 28 days days which she would normally take off during that time as annual leave.

True Flowery...hadnt thought of it like that.

Ive no legal idea, it was just a thought that occurred to me.

Nubbin Wed 08-Jul-09 16:19:00

This is a bit of an unclear area - needs a test case! As an employment lawyer I would advise:

It depends on the right in your contract.

All employees have the right to have 28 days leave a year (statutory minimum).

So if:

Your contract says 28 days a year (including bank holidays) - you will accrue 28 days during 12 months of maternity leave (pro rate for short periods).

Your contract says 35 days leave per year - you will accrue 35 days during 12 months of materinty leave.

Your contract says 28 days leave plus bank/public holidays - you will accrue 28 days. The right in your contract is to take a bank holiday off NOT a day of annual leave.

Your contract says 25 days plus bank holidays - you will accrue 28 days because of the statutory minimum.

There may also be provisions on carry over of holiday from one year to the next. Currently the Working Time Regs say that holiday cannot be carried over (so if your leave spans a holiday year you may lose any accrued holiday). The contractual holiday (over the 28 days will depend on your contract.) There is a ECJ case out there at the moment which suggests this may not be the case but it is not clear under UK law. Equally you may have arguments if your emplyoer allows other people to take a day in lieu of a bank holiday.

Public sector contracts (and employment policies) tend to be more generous on this type of entitlement. If you post the contractual wording I'll let you have my view on whether to take advice but the advie your HR received is largely correct if confusingly phrased.

If you are looking for places to back you up on the internet HR will be able to find comparable sources which state the opposite.

nickyboo Fri 04-Sep-09 15:53:38

I agree this is very confusing and needs a test case ! My company are not paying or allowing me to accrue any bank holidays that fall while I am on maternity leave.

I'm not sure whether this is correct or not ?

I've had a look at my contract and it states
"Your holiday entitlement is 30 days in each holiday year. In addition, you are entitled to Public Holidays plus 2 extra days nominated by the Company in the Christmas/New Year period. During all holidays you are entitled to your normal rate of pay".

Basically , what they are allowing me to accrue/be paid for is the annual leave entitlement of 30 days plus the 2 days at Xmas, but not the public holidays. However, I don't see how these days differ from public holidays in terms of the wording in the contract ?

Sorry for rambling... don't know whether to push the issue,as I do plan to return to work here- however 8 extra days paid is quite a lot and not to be sniffed at.

Anyone had any joy in fighting their cornor on this ?

Thanks !

Snowfalls108 Wed 09-Sep-09 16:19:46

I just raised this with my HR department - who were very unclear and reluctant to agree about the bank holidays. However once I sent them to the direct gov page that was linked to earlier and specifically the part that says:
"If your baby was due on or after 5 October 2008 you will build up all your entitlements to paid holiday throughout your Ordinary and Additional Maternity leave. This is even if your contract says you are entitled to more than the statutory minimum"
they have now agreed that I will get the bank holidays as well.

southlundon Wed 14-Oct-09 09:46:47

Hi

My office were also not going to pay or accrue the bank holidays (plus an additional company day they give all employees) so I sent them the following:

"I have been told that I was not entitled to accrue bank holidays (and the X Company day?) during maternity leave, but I am not sure why this is the case.
The Direct Gov website states "If your baby was due on or after 5 October 2008, you keep your normal employment rights and benefits (apart from wages) throughout your Ordinary and Additional Maternity Leave". It also specifies "If your baby was due on or after 5 October 2008 you will build up all your entitlements to paid holiday throughout your Ordinary and Additional Maternity leave. This is even if your contract says you are entitled to more than the statutory minimum."
http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyand maternityrights/DG_175088

As X Company's own Annual Leave policy states "Employees 25 days... All X Company employees are entitled to the above allowance of paid annual leave in addition to the agreed national holidays of their resident country" and "Employees are also entitled to take 1 days’ additional leave known as The X Company Day" so I can't see why the guidance above wouldn't apply."

I also called the Equalities and Human Rights Commission helpline and they advised me that I was a victim of direct sexual discrimination under the 1975 Sex Discrimination Act because I had "suffered a detriment that but for being on maternity leave would not have arisen" (their words). Luckily I didn't have to go down that route but again you may need the information.

After a few days pondering they have given me the days - 9 in total. I'd rather have had the pay but I'm not going to moan about it now!

Hope this helps and good luck.

nickyboo Mon 26-Oct-09 14:03:13

Hi all,

Just to let you know that after complaining and asking for confirmation of the legal basis on which they were relying on to deny payment for bank holidays, my company have got in touch and advised that they are changing their maternity policy on this and I will get payment or days in lieu (whichever I want) for all bank holidays that fall during the period of my maternity leave after all !

So it may be worth persuing the fight !

Nickyboo

I've just read through the whole of this thread and can I ask a few things??

When I go on mat leave this time I am taking 2 months AML - does this mean that I will acrue holiday during all of this time now rather than just OML??

I work 3 days per week now so get BH I think it is 6 per year, nothing was ever said about them when I took ML last time, so should I be expecting to have my 6 weeks of holiday plus Easter x 2, may day, whitsun and aug BH tagged on?? I could take 3 weeks at a time and come back to work 3 weeks later and get paid fot it!!!

This is very exciting!!!

america Thu 05-Nov-09 06:10:50

Thank you for this. My company just agreed to pay me those five bankholiday days occured during maternity leave.

I know flowery is off just having had her gorgous baby grin my employers are still saying I will not get the BH despite me sending them all the info from above link, same with childcare vouchers. I have printed everything off for them including the hmrc direct links which state this is the law but still they are disputing this sad. I only have 3 weeks before I go on mat leave any other sugestions for how I can make myself understood to them??

mamayaya Wed 18-Nov-09 22:02:34

What, they are disputing childcare vouchers?? Childcare vouchers actually present a saving opportunity for the employer as the cost of entering the scheme is less than the NI saving they make.

Carrielou you need to maybe do a formal letter to them ?? How are they disputing it / why?

They are still saying I will not get childcare vouchers and need to contact BusyBees to cancel them whilst I am off. Busybees of course have nothing to do with this and as my dd starts playgroup whilst I am off and they take the vouchers I want to pay with them and then build up the rest as a 'store' to help pay for 2 dc when I return to work.

They are also disputing the BH, I get 30 days due to extra from length of service (pro-rata for part time) and I have said I know I will only get the stat min whilst I am off 28 days and they are saying no you get 20 and no BH.

I have sent them all the links but still I am getting no I am the one who has gotten it wrong sad

Pregnatron Tue 02-Nov-10 16:03:18

Need some advice please - I'll set the scene first:

Have been back a work a month now and have quite a hectic job. I work with all men, there's only 7 of us & they weren't very welcoming when I returned, my baby didn't even get mentioned (didn't even get a card... not loosing sleep over it but you get the gist). Perhaps they're not keen on me you might think but we were all friends before i left for ML in Dec. Anyway, my baby's at nursery part time & has been poorly twice, so I had a day off, of which I came in on my day off that week (thanks to Gran offering to take the little one). And I had yesterday off (we were both struck with a sickness bug), so I called my boss Bob (I have 2 bosses, the other (Dick) was also off sick with the same bug yesterday) & informed Bob that I would come in on my day off (Fri) as my mum was available to babysit again. The other boss (Dick) just pulled me to one side (after he returned to work 3 hours late as he was still feeling dodgy after his day off sick!) & said that I had to make the time up from yesterday. I told him I had already made arrangements & had told Bob. He knows I'm not work shy, I have a director position but like I said to him, my mums not going to be able to babysit all the time, if I have to take time off I'm entitled as a parent aren't I?!

So, to get to my question (sorry-writing this whilst fuming is taking me right off point - apologies for the v longwinded rant folks) but am I entitled to paid leave for looking after my baby if sick? (We don't have any policies as the business is young - I don't even have a contract).

The next topic that arose from my "chat" with the boss was holidays & he said it was unlikely I'll have much time due as I'm now part time. Can anyone advise on what I should be entitled to if I work 3 days a week & I normally (full time) would be allowed 25 days paid leave? (I had 8 months ML)

Not expecting a mass of responses as I doubt anyone will have had time to read my post but just in case you do.... THANK YOU!

lal123 Tue 02-Nov-10 19:31:52

No - you are not entitled to paid leave to look after a sick child - you are entitled to unpaid leave though - and you may have more rights contractually.

Re annual leave - you're entitled to 3/5 of full time, so 15 days

Back to the public hol question - I've just returned to work after a year off and have been told that I am not entitled to public hols as I am only entitled to take them as they fall. I'm not arguing as it doesn't look as though I'll be able to use all the AL I've accrued.

Bixie Fri 03-Dec-10 21:38:47

Pregnatron, IF you were full time before you went off on maternity leave then you were entitled to the full years annual leave worth... Your annual leave entitlement will only go down when you apply for the part time position.
Also, some companies do entitle you paid leave to look after a sick child; there should be policies for this regardless of how new a company it is... You are also entitled to accrue bank holidays for the entirety of your maternity leave too... This is a relatively new section of law (think it was passed in 2008 or 2009?) I'd speak to CAB if i were you, if you have no personnel or anything?
I really would try and see if i could get some form of contract in writing tho as they'll just take the piss otherwise...
I work in a male dominated environment and my employer has over 30000 employees... (Have a guess!) yet females are still treated badly when it comes to maternity and flexible working issues; even though they are constantly winning 'family friendly employer awards' Hmmmmmmmmm...
xxx

Plc19 Thu 05-May-11 12:55:16

I am currently on mat leave, since end of Sept last year and have handed in my notice. Two things I am unclear on:

My company say that they aren't paying me smp for the notice month as I have 'exceeded my allowance' due to a tax rebate I had in Jan. Is this possible?

Also my employment contract says I get 25 days holiday entitlement plus additional bank/public holidays. In terms of my final hol pay my company says they will pay accrued days Jan-May this year but not the bank hold that have fallen in this period.

Advice appreciated. Thanks.

Mibby Tue 10-May-11 22:15:26

Just marking my place on this very useful thread as Im debating this with my HR at the min

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