Accruing Bank Holidays whilst on Maternity Leave – You ARE entitled to this!

[CollieandPup]

After being told by my employer (NHS) that I am not entitled to accrue bank holidays in addition to my annual leave, I did a bit of digging as I was certain this was untrue. Having spent a lot of time googling and reading other peoples posts on many forums I was very surprised at the variance of practice and even more at the lack of knowledge within HR teams on rights etc.

So, the outcome of my digging was worthwhile. Although it seems that the majority of employers don?t allow this ?this is incorrect practice. Whilst on maternity leave all staff ARE entitled to accrue all annual leave, any annual leave that is fixed (i.e. company closes down at Christmas) AND bank holidays. This ruling has been established though case law after the Gomez v Continental Industrias del Caucho SA [2004] Ruling during which the ECJ held that a woman must be able to take her annual leave, including leave which is fixed, at another time outside the period of her maternity leave.

The following is taken from an employee relations advisory bulletin produces by the Employers Organisation:

?This case means that a woman must accrue her annual leave, plus any fixed holidays, such as bank or extra-statutory holidays, during her ordinary maternity leave period and be able to take the leave either before or after her maternity leave. It applies to contractual leave and not just the statutory minimum.? ?A bank holiday is effectively a fixed day of paid annual leave A woman should therefore be able to take any bank or extra-statutory holiday that falls during her ordinary maternity leave either before or after her maternity leave?.

Also, all employees are now legally entitled to 28 days holiday every year (or pro rata). Some companies include bank holidays in these so its all the more important you make sure you are allow to accrue your bank holidays if this is the case!

Hope people find this helpful ? I?m now off to share with my HR!

Hello Collie Actually this is better than I thought you meant - bloody good bit of digging and I will be adding the 3 christmas BHs to my "accrued" leave!!!

may manager tried to tell me I wasn't entitled to this but backed down when I showed him it written in the company's own handbook! Also next year will include an extra one so that's nine fully paid days leave before I return to work next year - very nice too!

there aren't three bank hols at xmas are there? The new years day one will count as next years lot won't it?

But if the annual leave year runs from April to April then there are 3 bank hols over Xmas IYSWIM.

Is this not contrct dependant? If you aren't entitled to bank holidays in your contract then you won't be for maternity purposes?

Also I know a number of people who weren't given the April one even though they are entitled to BH's but it does state 8 in their contract in some way so this is why the companies got around it. This included my hospital as I was scanned on this day and told they were told they were getting it and cancelled everyone, then they were told they weren't and had to book people in again.

Also it is not 28 days you are entitled to it is 5.6 weeks as if you only work 1 day a week you will be off for 28 weeks of the year.

Sorry that sounded like I was having a go, it wasn't intended that way at all.

CollieandPup - Is this true even if your annual leave entitlement exceeds that of the statutory minimum (ie more than 28 days per year or 20 + BH)?

nunnie yes i think it does depend on your contract as employers are not legally required to provide paid leave for bank holidays (i don't think), but if paid leave for bank holidays is outlined in your contract then i think it would apply.

nunnie re 5.6 weeks - thats what i meant by pro-rata if you don't work full time. Working one day a week and getting 28 days leave would be a cushy number!!

outtehre yes even if your annual leave entitlement exceeds the statutory minimum - i get 27 days plus bank holidays. As long as the entitlement is on your contract as this then makes it a contractual benefit, which you are entitled to. See Direct Gov here

I am no solicitor and these things are never straightforward depending on your contract. But if you are being told no you can't have bank hols by your employer then i would challenge and sign post them to the case law above - - I wouldn't want to be the employer that challenged it.

Also see here for gudiance from local government employers - scroll to the bottom. Also reinforces this.

It would that 28 weeks leave would be lovely

Thanks collie I will go back to HR as they told me I would accrue my holiday but not bank holidays. Good digging!!!

I had to remind my hr dept about the queens jubilee next year :)

And tell them half their literature was out of date...shocking...

You are right CollieandPup although some employers choose to hope that women don't notice to keep costs down after the government introduced the minimum of 28 days a few years ago.

What it does mean though is that some companies give you say, 25 days holiday (contractual) and the 8 bank holidays on top so you actually get 33 days off per year normally.

However some employment contracts and/or holiday policies are written so that if you resign or are on maternity leave you revert to only receiving the statutory amount of 28 days per year which is what you are legally entitled too. So ifn you took all 25 days before your mat leave you would only be entitled to 3 more days not the full 8. If they are not written in this way then it's worth arguing for the full lot over the 28 days.

As most women don't have maternity leave in a neat "leave year" way its a pain to work out but really worth doing.

Guess what area of a company I work in......

Right, here's the thing.

My contract includes a clause about being covered by an employee handbook.
My employee handbook says:

"All full time employees are to receive 28 days annual leave in addition to bank holidays."

and

"all employees are allowed 8 Public Holidays as follows"

Does this mean that Public holidays are part of my contractual entitlement?

The employee handbook further goes on to state that Public holidays that occur during your maternity leave will not be accrued.

Even though this effectively forms part of my contract, surely it's an illegal statement? It certainly feel discriminatory especially given that it contradicts goverment and legal advice...

I would honestly have to say outhere that they way that they have worded it means that they are only obliging their minumum legal responsibility, i.e. you only get the 28 days per leave year when on mat leave. Doesn't stop you asking the question though?

As long as the company pays/gives you the 28 days they are legally compliant at the moment, I am sure one day someone will pick up on this and challenge it.

My company do the same thing.

I would disagree vix as the contract entitles outhere and all other staff to 28 days plus bank holidays. To then remove her right to the bank holidays (fixed days holiday) is to withhold a contractual benefit that all other staff are entitled to. Thus being discriminatory. This is pretty much how my policy is worded (except the bit about not being allowed to carry over bank holidays is not in black and White-just verbal so far) and I will be challenging it.

The guidance from the equality and human rights commission isn't helpful as it says more case law is needed to determine if this scenario is actually discrimination -despite the above local government advice saying it is. But the commission doesn't really have any balls!! I can't see many employers wanting to be that test case!

As vix says, can't hurt to ask. But push hard.

Our policy is as u r saying collie....if your colleagues get them...so do u. We get our normal leave plus bank hols BUT they don't apply them automatically which I think is awful...they don't promote your rights at all, probably in hope u don't claim them so they save pennies! They make u take them before baby is due tho but I was lucky and they couldn't release me due operational requirements so have carried them to the end of my mat leave. I was told HAD to be used to make up part of my 1 year mat leave but then they weren't sure if it was legal to say that as I'm entitled to years mat leave by law forgetting annual leave.... So now they have let me use some of it as part of my mat leave (during unpaid bit) then 3 weeks after my 1 year maternity was up.

Hi all,

I've been up most of the night thinking about this ...!

From what I understand the main outcome of the case law above (Merino Gomez v Continental Industrias del Caucho) was that maternity cannot be co-incident with annual leave. The purpose of maternity leave is to recover from birth and to establish a mother-baby bond. The court ruled that it is NOT holiday or a rest period which is the purpose of annual leave. Therefore the twon cannot be co-incident.

My interpretation (which I hope is wrong!) is that when bank holidays are expressed as annual leave then they are legally deemed to be for the purpose of rest (ie cannot be coincident with maternity leave). When bank holidays are detailed separately to your leave entitlement (as in my contract) then they are effectively saying that they are not legally rest days but are just days where you do not have to attend the work place. When on maternity leave you are obviously not attending the workplace and therefore they can occur coincidentally (and therefore not actually missing out on anything).

Having said that, my situation is further complicated by the fact that I work shifts and we normally work bank holidays and accrue them onto our leave entitlement to be taken whenever we please. If you are rostered for a day off during a bank holiday you will still accrue it. In my mind being on maternity leave during a bank holiday is not different to being on a rostered rest day. Instead they treat it as though it was sick leave and apply the same rules (ie you DON'T accrue).

In my opinion it is discriminatory to treat maternity leave in this way as I'm effectively incurring a penalty that I would not befall but for being on maternity leave.

Phew, sorry that was a bit long and probably total bollocks

Any opinions anyone??

My interpretation is that they can't treat you differently because you are on mat leave. So they can't, for example, decide that you are only entitled to the stat minimum because you are on mat leave

I agree Stealth... but...

They would argue that I'm not suffering a detriment because I'm not in attendance during the bank holidays (which is our conractual entitlement since they are not classed as "annual leave"). For the record, I don't agree with this on principle but I have a feeling that's how the law would see it

I would argue that, becuase I'm a shift worker I should be allowed to accrue these in the same way that my shift working colleagues are. To deny me this privelige is to put me at detriment. The trouble is that I can't find in writing anywhere how shift workers are to handle their bank holiday entitelment...

I would argue that no you're not in attendance, you are on maternity leave. Which is different from normal leave

The shift workers at my place get the same as me...leave plus bank hols....that might be just our place's policy but to be honest our place only ever give out the minimum on these things.

Good luck I agree with your post above and that legally u should have it. Can u ring citizens advice? That's how one of my colleagues ended up finding out what we were entitled to and she had to tell our hr dept!!!!

I've just spoken to ACAS regarding this as my employer told me I would not accrue Bank Holidays. They said that I am entitled to 5.6 weeks/28 days off in a year ( in my case this is normally 20 days a/l plus the bank holidays). In this case the employer should be letting you have 28 days leave in a year, however they work this out. It's all down to the Equality Act. Got to break the news to our HR dept now!!

Thank you CollieandPup - this is exactly what I needed. My workplace is very small so we don't have a HR dept and my boss is clueless as to what i am/am not entitled to, however she doesn't think bank holidays are included so this will help me put my case forward.

I have a question which is sort of related.

If Maternity leave overlaps over two financial years, are we entitled to use the holidays that we would accrue before the maternity leave start?

For instance, my due date is Oct 29th and i intend to use the 10 days of AL i have left before i go on mat leave. however these are days accrued until March 31st 2012. As I intend to take a year out, i also accrue holidays from April 1st 2012 (14 days from April until end of Oct), can i use those too this year?

Can anyone advise?

Thanks! xx