Is my employer breaking the law? Where do I stand?

[Dandylioness1]

I’m currently on maternity leave which is due to end on the 22nd February. (I’ve taken a full years mat leave)

Our holiday year runs March - Feb and I have also accrued bank holidays which means I have 29 days holiday entitlement for 2020.

Originally I was only taking 9 months maternity and two weeks holiday which would’ve left me with holiday to take when I returned to work.

I then requested to extend my maternity to the full 52 weeks (taking me to 22nd Feb) and add my holiday to the end.

At the same time I also requested flexible working and have reduced my hours to part time (24 instead of 40)

My employer contacted me yesterday advising that my flexible hours have been approved but I would need to end my maternity in January to be entitled to take my 28 days paid at my current rate of pay.

If I take them after my maternity ends then I would get paid for them on my new hours (which is a pro rata of my salary)

This doesn’t seem right to me as I’ve accrued my hours on my current contract on my current rate of pay.

Does anyone know where I stand with this?

That doesn’t sound right at all. Speak to ACAS!

I don't get it... end maternity leave early... take holiday pay then start new hours. Why is this an issue? Unless you want full year off maternity then extra time off for holiday.

I wonder if your company might have a policy of taking annual leave by the January of the year after it's accrued? In other words January would be a month of pay whereby you'd use the accrued annual leave from 2020. From Jan 2021 you'd be accruing 'new annual leave'' on your new part-time hours and consequently be entitled to less.

I may be wrong but this is how I'd read the proposal.

Yes that sounds right

Surely they just keep you on your old contract til you've used your leave up? Or you could use some to go part time hours but full time pay. They def sound wrong.

@Needbettername

I don't get it... end maternity leave early... take holiday pay then start new hours. Why is this an issue? Unless you want full year off maternity then extra time off for holiday.

@Needbettername

Because I’m not entitled to take off a full year maternity leave (which I am doing) and I should then be entitled to my accrued holidays at the end.

They are saying I can only get paid for my holidays on my currently full time salary if I end my maternity leave earlier than 52 weeks, otherwise I will have to take them
paid on my new part time hours.

Sorry that should say because I am entitled to take a full years mat leave.

No that’s not right. Your new hours start when you return. All holiday accrued up until then would be at 40 hours/week. You should be able to take 52 weeks maternity + any owed holiday on your original hours on top and then return whatever date that takes you up to. Because you are on mat leave the holiday would roll into the next years entitlement.

At 52 weeks you have to return to work. Therefore you will be on the new contract.

The only thing that you can ask is that you return on your old contract for your leave and then revert to the new amended hours contract after that.

I would get advice from ACAS, that does not sound right at all. Have you got a maternity policy you can look at?

Its wrong. Something similar happened to be, albeit by mistake.

My annual leave runs Jan - Dec and I was due back from maternity leave the end of November, taking all of December off as I had accrued the exact amount of leave to do so. However I was returning part time at five days a week but fewer hours per day, say 8 hours down to six hours per day.

Up until the point of my return my holidays were accrued at the full time rate. From my return they were accrued at the lower hour rate.

So I had 11 months of holidays and bank holidays accrued at a full time rate plus one month accrued at the 6 hour part time rate.

Work accidentally paid my December pay at 12 months of the six hour per day rate. It was an accident so I didn't need to argue it but I looked into it before I complained and it was correct, you're accruing those hours during maternity leave based on the rate you were on before you went off.

Slightly different as I took 12 months with the holidays so officially came back after 11 months. So that may be the difference but I can't imagine it's legal.

There are right that you won't get paid more. You'll have a huge amount of leave though.

@Siennabear

No that’s not right. Your new hours start when you return. All holiday accrued up until then would be at 40 hours/week. You should be able to take 52 weeks maternity + any owed holiday on your original hours on top and then return whatever date that takes you up to. Because you are on mat leave the holiday would roll into the next years entitlement.

@Siennabear

This is exactly what I thought.

And your holidays can be carried over to the next years entitlement. I was offered this instead of an earlier return but for me it made more sense to get a full month of pay at the end of maternity leave than have more than double holidays. Lucky choice as Covid would have meant I'd have hardly been in work this year

Have I misunderstood? Have they said you can't take the holidays or have they said you will only get paid your pro rata salary?

Do they perhaps mean you're only allowed to get paid the holiday you take based on your prorated hours?

So for example you accrued 200 hours based on 20 days x 10 hours a day but are going back at 5 hours a day so are actually owed 40 days holiday at 5 hours per day?

It doesn't sound right to me. I had a year off which fell almost exactly in our work holiday year (Apr to Apr).
I was full time 5 days and was changing to 3 days on my return.

I had the 12 months, then the 20 days holiday I'd accrued while off (based on my full time contract) plus 8 bank holiday days. Only then did they start me on a new contract for 3 days per week!

@ArosGartref

Have I misunderstood? Have they said you can't take the holidays or have they said you will only get paid your pro rata salary?

If I take them by cutting my 52 weeks short then I will get the 29 days holiday paid on my full time salary.

If I take my 52 weeks maternity I can take the holiday but I will get paid them on pro rata salary.

This is from the maternity action website.

Seems they are right in that you will have accrued the hours but that you will be on your new contract

Do I accrue annual leave during maternity leave?
Yes, you continue to accrue annual leave during your maternity leave as if you were still at work. It is up to you to decide when you wish to take your annual leave and you should agree it with your employer in the usual way.
Your annual leave entitlement is based on your current contract of employment. If you are reducing your hours of work after returning to work, e.g. going part-time, your new contract will usually start at the end of your maternity leave unless you and your employer agreed otherwise. This means that your annual leave entitlement will be reduced pro rata from the date of your return to work. This can often mean that you will have a lot of annual leave to use after returning part-time so it is a good idea to talk to your employer about when you will take it.

You could just think about it as you are still getting 52 weeks mat leave but the last six weeks are on full pay rather than no pay.

@flowery Usually hangs out on the legal board but may have advice for you OP.

I believe your holidays are calculated on days, rather than pay. So it doesn’t matter what your new salary is - your FTE rate is still the same. If you're entitled to 25 days leave a year and have not used any of this by the time you return to work, you’re still entitled to those days.
If they claim you cant have them they’re discriminating against your protected characteristic of pregnancy.

Your final 3 months of maternity are unpaid, would it not be better to take the annual leave, then you don't have as much unpaid?

How would they give you the 29 days holiday when you are back on reduced hours.

Or what if you asked to take your annual leave straight after the 52 weeks, then at end of that reduce your hours?

I don’t think that anyone is saying that she can’t take the leave but that if she takes a month leave she will only be paid for the days she would normally work in that month under the new contract. Rather than her old full time salary

So if she were to take all her accrued leave before returning to work she would take 29 days which would work out as just over two months. So you could do that take two months at the new half pay.

Or you could see if they will negotiate and allow you one month at old pay