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Annual leave accrued during ML - taken but not paid for it?

(20 Posts)
RiceGrain Wed 01-Jul-09 11:45:16

Hi All, I am new to the forum and apologies if the topic has been discussed before.
I took my annual leave after the end of my AML. HR said I was entitled to the full leave but not to any pay during it. I am confused here, if I were in the office I would get paid while on annual leave. Does it work different when the annual leave is accrued during ML? Thanks

EldonAve Wed 01-Jul-09 11:52:29

you should get paid for it

RiceGrain Wed 01-Jul-09 11:55:35

Thanks EldonAve, is there anything I can show them to prove it as their understanding is that I was not in the office and I am not entitled to pay.

CMOTdibbler Wed 01-Jul-09 12:00:07

You get paid for it -definatly. During maternity leave you still accrue all benefits, except actual pay.

lal123 Wed 01-Jul-09 12:00:51

here? They are daft by the way.

CMOTdibbler Wed 01-Jul-09 12:05:12

This link is good, and you can phone ACAS for definitive advice

bluebump Wed 01-Jul-09 12:08:35

You should get paid from when the end of your AML ends onwards, at least that's what is about to happen to me when my maternity leave officially ends in a few weeks even though I won't be back in the office until August.

MrsMichaelSchofield Wed 01-Jul-09 12:12:00

What I was told that because we are only allowed to carry 5 days holiday forward from one year to the next, I ended up having take all my annual leave before my mat leave started. I started ML in May and didn't want to come back to work in Jan, and so I couldn't tag my annual leave onto the end of my maternity leave. So it was a choice of taking it before my mat leave or losing it.

Has something like that happened to you and that's why you weren't paid for it?

RiceGrain Wed 01-Jul-09 14:17:48

The end of my ML coincided with the end of the holiday year so I was allowed to take it all.

flowerybeanbag Wed 01-Jul-09 19:19:02

How strange. Do they actually realise you had returned from maternity leave and were on holiday? I presume you had arranged with your manager that you would be back from maternity leave and taking annual leave at that time. Was that communicated to the relevant people ok? Did you confirm your maternity return date as being the first day of your holiday?

You are entitled to accrue annual leave during maternity leave, and annual leave is obviously paid leave, so there's no problem there. Unpaid leave is something different.

abcmum Wed 01-Jul-09 19:41:00

You are are entitled to be paid for it and what's more there is longer a restriction on carry over (eg 5 day limit) thanks to the House of Lords decision on the Stringer case in June 09. Although this case relates to accrual of holiday during Sick pay, buy extension, it also applies to Maternity Leave, therefore if you are off on Maternity Leave for a full year, you can carry over your WHOLE holiday entitlement to the following year and be paid for it!

abcmum Wed 01-Jul-09 19:44:55

http://www.shoosmiths.co.uk/news/2346.asp

See point 5 of this summary on this recent decision.

flowerybeanbag Thu 02-Jul-09 09:18:36

That's interesting guidance from shoosmiths abcmum. The CIPD has taken a different line and says it is unlikely to affect workers on maternity leave at the moment.

Sorry for cut and paste but you need a log on to see the link to this

--------------------------------

In Stringer the ECJ has said that under the Directive:

Workers on sick leave can accrue the four weeks’ paid holiday while they are on long-term sick leave(This does not apply to all of the 28 days applicable under the UK legislation).
Workers must be allowed to take this accrued holiday on their return to work.
Any national rule which prevents workers actually taking paid leave during sick leave is permissible, as long as the worker then has the right to take their leave at another time (that is when they return). Similarly a national rule which allows workers to take paid annual leave during sick leave is also allowed.
It is not lawful to provide that the right to annual leave is lost at the end of a leave year where the worker has been on sick leave.
Where the employment relationship is terminated, workers are entitled to take the leave or to any pay in lieu of the holiday which was not taken due to illness. This is the case even where the worker was on sick leave for all or part of the leave year in question.
Accrued statutory holiday not taken due to sickness can be taken at a later date - even if it is during the next leave year.
The House of Lords will now have to deal with these points as applied to the case in the light of the ECJ decision.
.
Implications for employers:

Employers must provide all workers with at least four weeks annual leave in accordance with Regulation 13 of the Working Time Regulations 1998 in the usual way.
The UK's current Working Time Regulations (WTR) state that leave must be taken in the year in which it is due, this now seems inconsistent with the ECJ's judgement in Stringer and so new legislation may be needed.
Employers may incur increased costs in relation to workers who return (or leave) following long-term sick leave.
Employers should check private health insurance schemes and may be better off not providing these and dismissing the long-term sick earlier rather than later.
At the very least employers should focus on managing sickness absence to ensure the employees return to work as soon as possible.
Workers who are incapable of work through illness have the right to annual leave, but this leave cannot be taken during the period of sick leave.
If the employment relationship ends, workers are entitled to a payment in lieu in respect of untaken leave due to sickness (even if the worker is absent for all or part of the leave year in question).
Accrued statutory holiday not taken due to sickness can be taken at a later date (even if it is during the next leave year when the worker returns to work).
Employers should remain wary of denying holiday pay to employees who have been absent for part of the year.
As the EU cases refer to the four weeks holiday under the EU Working Time Directive, employers must decide how to deal with the additional holiday conferred by the UK Working Time Regulations (and/or any contractual holiday). This must be dealt with in sickness, or absence policies.
The ECJ judgment does not entitle workers to accrue the additional holiday during sickness absence, although employers may wish to allow this. If they do not, disability discrimination issues may arise and treating the extra holiday entitlement differently may be difficult for personnel departments to administer. Alternatively employers may limit any holiday which accrues during sick leave to a maximum of four weeks holiday as long as the relevant policy says so.
Employers must review current holiday policies to remove reference to untaken holiday being lost at the end of the leave year, at least as far as those on sick leave are concerned.
The cases do not deal directly with other areas of the law and it is unlikely to further affect other common long term absences such as ordinary and additional maternity leave. Perhaps subsequent cases may address similar issues concerning paid holiday during, for example, a long term sabbatical.
As the law is now going through a process of change employers must be very careful with employees who are on long-term sick leave as they are also likely to be protected by the Disability Discrimination Act 1995.
Subject to what the House of Lords says, workers may be obliged to, or prevented from taking paid annual leave, during sick leave (as long as they do not lose it altogether).

---------------------------------

You will see from that that the ECJ was all about it being lawful for national laws to refuse a worker the right to take holiday while on sick leave, as long as they get to take it when they get back, even if it means they need to carry over some.

I'm not sure it's a simple as saying that will automatically apply to workers on maternity leave tbh.

RibenaBerry Thu 02-Jul-09 09:36:30

I agree with Flowery on this one actually. The issue with sick leave is that an employee who is on sick leave for the whole of the year has had no chance to take their annual leave. Likewise, an employee doesn't normally plan to be off sick, so it couldn't be said to be reasonable to expect them to take holiday before they go off.

With maternity leave on the other hand, you know the dates and can therefore plan to take your holiday in the year it accrues. The exception would probably be a situation where the employee goes on maternity leave at the very beginning of the year. If you went on leave on 15 January for example, you could only take two weeks holiday in the holiday year if you planned to take your full 52 weeks of leave. In those situations allowing additional carry over is probably required (but most employers do anyway). I would be advising employers to continue to apply their normal carry forward rules, except in this limited situation.

Sorry OP, this is a bit of a tangent. Totally agree that you should have been paid for your holiday.

RiceGrain Thu 09-Jul-09 12:20:35

Thank you all for helping me clarify this matter. HR now made a U turn and said that they never said I should not be paid and they thought they actually paid me. Waiting for Payroll company to come back on that.

abcmum Thu 09-Jul-09 17:50:39

Sorry, only just read your replies. Totally agree with you both and was surprised to read the Shoosmiths interpretation, however I expect that we will have to wait for yet some more case law to decide. No doubt it will be challenged if a lady who has been off on Mat leave is not permitted full carry over, if she had no chance to take holidays due to Mat leave - like you say prob only likely anyway for someone going off at start of holiday year.

Rice Grain - pleased your company did a U- turn - excuse us debating employment law LOL!

RiceGrain Tue 14-Jul-09 16:31:40

I am getting a nice little bonus on top of my salary this month!!!!!!
Thanks you all for your help!

RibenaBerry Tue 14-Jul-09 17:37:21

That's great Ricegrain!

abcmum - put bluntly, I think Shoosmiths' interpretation is wrong. I totally agree that the obvious challenge is from a woman who didn't get the chance to take her holiday (where I think it is possible that the rules would apply) and so HR departments should be highlighting carry forward rules to all maternity 'leavers' to ensure that they can say that the woman had full opportunity to take her holiday.

PavlovtheForgetfulCat Tue 14-Jul-09 17:45:42

How about then, say, you take maternity leave after a period of sickness absence and thus no chance to take the annual leave that has built up? Can you carry that annual leave across to the following year, on the basis there would be no opportunity to take it, same as the Stringer case, but with maternity leave at the end of it?

Glad you got your money ricegrain grin

tremari Tue 21-Jul-09 16:12:10

I urgently need some direction on sick pay:
My employers GP decided 16yrs ago that I should not work and I was placed on their two-thirds salary long term sick leave with a horrible ilness as per their policy. I now "retire" in 3yrs time at 65. I have never received any holiday pay or had any contact with the HR since.
Should I be paid for 16+ yrs arrears as per the ECJ/lords ruling in June?

Any advice will be appreciated

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