Aibu to think my Bank Holidays should be accrued through maternity leave?

[Maternityconfusion]

Hi everyone

Posting for traffic as its a bit quiet on the employment board.

I am very confused about what happens with bank Holidays when I am on maternity and I am reading mixed answers whilst doing my research.

My holiday entitlement is 5 weeks plus bank Holidays. My department works the bank Holidays (accept christmas when we close) and we therefore get the time back in leiu.

My employer has told me I don't accrue the bank Holidays whilst I am on maternity leave.

I feel like I'm being treated less favorably because I am on maternity and I thought my contractual benefits had to continue whilst on maternity leave. So if I were to get 5 weeks plus the bank Holidays in leiu whilst I was working, I should get the same whilst on maternity because I should be treated as if I was at work.

The CAB website seems to agree with me. Various other places also seem to agree and say if my contract says my leave entitlement is 25 days PLUS bank Holidays then this is what I should accrue.

However the maternity action website says

"All employees are entitled to 28 days statutory annual leave. If your employer provides 28 days annual leave, including Bank Holidays, your employer should allow you to take paid holiday at another time, as the European Court of Justice case of Gomez said that a woman is entitled to take her statutory annual leave as well as her maternity leave. This may also apply to fixed holidays that are part of your statutory annual leave entitlement but the law is not clear and you may wish to seek further advice.

If you are entitled to 28 days annual leave, plus Bank Holidays, you should check your contract or maternity policy to see if you are allowed to take Bank Holidays or fixed holidays that fall during maternity leave at another time. If your employer allows employees who are sick on a bank holiday to take a day off in lieu, they should also allow women on maternity leave to do the same, as it could be discriminatory not to."

So now I'm confused! I don't understand why I wouldn't accrue this time off. Essentially my colleagues who are not on maternity leave are getting extra days off and I am getting back less days than I would be if I wasn't in maternity yleave.

I've spoken to Acas who although made it clear that I should be getting the 5.6 minimum statutory, kind of avoided the fact that even if my employee allows me the 5.6 this is still less than what my contracts says.

The equality human rights commsion website says a similar thing to maternity action.

Can anyone shed any light? I know I have to just put this into writing to my employer but I was hoping someone might give me some hope!

Thanks for reading this far

Well, if your contract states:

You have 25 days leave plus 8 BH. For the calculation of blah blah we use only the statutory minimum requirements.

Then you DO get your contractual benefits.

My DH can carry over 5 days per year and already gets 30 days per year. So he could have 35 days in a year. But if he left they’d not include those carried over in his leaving calc.

Have you spoken to the proper HR division?

Sorry, meant to add - as your contract doesn’t make those provisions then they have to pay you or give you the leave.

FFS it doesn't depend on policy or whatever statutory allowances are.
You get whatever your company holiday entitlement is including BH. That could be just 28 days or it could be more.
What they are NOT allowed to do is treat you less favourably because of your having been on mat leave. That would be discrimination. So, in short: yes. You accrue all normal leave and all bank hols. Pro rata if you're part-time.

Ok there is something I am aware of but I am not at work so I can’t check it

This is something to do with mat or sick leave falling into a new Leave year.

I may well be wrong (or my boss is) but I think my company withheld bank holidays from someone when their leave went into the next financial year.

So the year they went on mat leave, they got bank holidays

but the subsequent year they did not get given them until they returned - so these were no counted before they came back.

They were not paid and not included in their entitlement. When they returned they were given the remaining number of BH outstanding for the year

This is because i think, giving the allowance for the year they couldn’t use their BH as on mat leave is fine, but if you return in the new financial year you can’t have the BH ‘upfront’ as they haven’t happened yet.

@wowseroonie this is exactly what I think as well but what does the law say?

Half of the resources are saying I should get the same contractual benefits and should accrue annual leave as I would normally and this includes bank Holidays but the other half are saying I don't get them and I will only get the 28 days minimum.

I accrued my bank holidays and my contract was 26 days + bank holidays. Definitely question it with HR.

I didn't even know I was supposed to accrue them so it was a nice surprise!

@confusedandemployed

This is from Maternity Action - if you get bank holidays in addition then you consult your contract. It’s not automatic.

@merryoldgoat no haven't contacted HR but I will do, it's a bit of a bizarre set up, I don't even know how to access policies and procedures.

I think I will need to find out if it says anywhere that for the purposes of maternityeave I only get statutory. Not that they offering me the statutory either!!

I just don't understand how they can do this because they're essentially putting in a term that overrides the law!

@confusedandemployed thank you that's what I think as well but the problem is how can I make them see that. Would you agree that they can have a clause in the contract only allowing me statutory during matenrity? To me that says its discrimination because I am at a detriment purely because of maternity leave.

@oldmerrygoat yes I quoted that part in my OP, but it is the opposite of what cab are saying and many other reliable sites which say I should accrue leave a normal. Cab even gives examples of someone who has 25 days plus bank Holidays and it clearly says she should accrue 33 days. I will copy it bekow:

Bank holidays
You shouldn’t lose out on bank holidays while you’re on maternity leave. You should build up the same number of days off as if you’d been working - including bank holidays.

Example
Priya gets 25 days of holiday a year, plus 8 bank holidays. She takes a year of maternity leave. When she returns to work she’s built up 33 days of holiday.

Amy gets 30 days of holiday a year, but she doesn’t get bank holidays off. She takes a year of maternity leave. When she returns to work she’s built up 30 days of holiday.

@Merryoldgoat yes I'm aware of the contractual position, but even so that doesn't trump people's right not to be discriminated against. If you're not allowed to accrue BHs on mat leave then you're being treated less favourably. Companiesay try to hide behind the contract of employment, but that doesn't exempt them from obeying the law.

Ok, so it’s like if they say you have 28 days paid leave a year and that includes bank holidays. We use this to calculate statutory stuff. As a courtesy we also allow you to have another 5 paid days off but these are additional and do not form a basis.

The key is YOUR contract doesn’t say anything like that that so you are entitled to them.

Who have you spoken to? In my experience OPs managers have very little understanding of this stuff.

Teachers have their pay divided over 12 months, but some of their year is unpaid.

@confusedandemployed

I see what you’re saying - that makes sense.

@merryoldgoat just my manager who I don't think is very clued up. I think I will go to the HR of the company who have taken us over and ask for the maternity policy. Or maybe my manager but I don't want to let on I'm chellenging it yet. I have no reasons to think there would be repercussions but I don't know how far I should take it just because of being seen as a trouble maker and not wanting the stress. But at the same time that's how these company's get away with it.

I almost guarantee your manager doesn’t know and it will be fine.

Mine didn’t know anything - HR told me everything. I just gave them the dates.

neither Priya or Amy is really you though
assuming you are full time you will accumulate the minimum 28 days ( my guess this is 25 days you choose plus Christmas Day boxing Day and New years Day for example) the other BH you get a day off if you work it in TOIL if that is what your contract says then as you don't work the BH there is no TOIL
but they can't just give you the 25 days as that is 3 days below minimum
the point is I think how to they treat sick leave if you were sick on Good Friday would you still get TOIL? if not then not getting TOIL as on maternity is fair ( you get statutory 28 days) however if the person sick on Good Friday still gets TOIL then you must get your BH added on so you would accumulate 33 days

The way I see it (from an utterly straightforward point of view) is this.

A - You get X days basic holiday entitlement, plus bank holidays.

B - Due to the nature of the business, people are expected to work on bank holidays, but get a day off in lieu instead. So if you didn't work on a bank holiday, you wouldn't get the day off in lieu, would you?

Well, you aren't working on the bank holidays, are you? You're on maternity leave.

So logically, it appears that what you are entitled to is the standard X days holiday.

Legally you should not be treated less favourably by being on maternity leave. You were spot on in a previous post where you said that you would have received the benefit of you were not on maternity leave. However, you are on maternity leave and so if you don’t receive the bank holidays the only reason would be because you are on maternity leave, which is discrimination,
Even if you received the statutory minimum whilst on mat leave this is less than if you weren’t on mat leave and therefore isn’t allowed.

@gostiwooz I'm not sure it's relevant that I get them in lieu.

Even if my contract said 5 weeks plus bank Holidays and I got all of those actual bank Holidays off I would still feel the same.

Your reasoning doesn't work because if that were the case i wouldn't be entitled to annual leave either because I'm already on matenrity leave so why would I get it back when I haven't been at work to accrue it? I've been on my matenrity jollies why should I get annual leave?

The law says I'm entitled to the same terms and conditions in my contract whilst I am on maternity and I should be treated the same as if I was still at work.

You obviously don't agree that people should get the bank Holidays back but this is about where I stand legally.

@wowseroonie thank you, you've written that really clearly and I might use your exact words when I bring it up!

Thank you everyone for spending your Friday night with me

You’re welcome - good luck with it.

You should definitely be getting bank holidays. I've just gone through my mat pay and I know my company gives them, I think it's common policy. I would question them on this.

I accrued bank holidays whilst on maternity and when I returned to work working tues-thurs I got BH on a pro rata basis. I, too, had a manager who didn’t know what he was talking about and had to threaten to take it to a tribunal to get my entitlement. ACAS will tell you everything you need to know.

I'm currently on maternity leave, and I am accruing bank holidays, they just added any left until info back to work on top of my holiday entitlement! You should 100% get them

I have no opinion either way, OP. Hope you get it sorted out.