Advice from employment lawyer needed - Question about Annual Leave whilst on mat leave

[scoobysnac]

If anyone is a an employment lawyer I really need urgent advice.

I am on mat leave which started in January. I have decided to take the whole year but my employer is refusing to allow me to take my annual leave, add it on to the end of my mat leave or pay me for it.

I am due to go back in january but at this rate I feel I cannot return because of how I am being treated.
If anyone knows what I can do please let me know.

Not an employment lawyer but I don't think they are allowed to do that:
www.businesslink.gov.uk/bdotg/action/detail?itemId=1080902982&type=RESOURCES

when i was on mat leave - my personnel dept told me the following which i believe is true:

Your leave is accrued during your time off on PAID maternity leave. e.g i was entitled to 12 months off but i was only paid for 6 months and so only accrued for those 6 months - so your holiday entitlement will reduced according to how long you get paid for. However regardless you must get the 20 days of leave which is statutory regardless.

For example at the time i was getting 32 days leave - and as i was being paid for 6 months, in theory i was only 'earning' half that (16) - however they can only reduce your leave to the statutory level and not further. My colleague who had 56 days leave saw her leave reduce by 50% on mat leave as this was above the statutory level. Hope that makes sense!

Also not in employment law, but at my work we hade to take any hol in the actual holiday year, as per normal and we weren't allowed to carry any over to the new holiday year. So you had to work out when to take hol, mat leave and extended mat leave so you didn't lose out on anything (esp as you are paid for your hol). We also would not be paid for anything owing.

It can get v complicated esp if you are due to go off/come back around the start of the holiday year.

As far as I am aware, you are entitled to everything as if you were there, but the onus would be on you to work out when you could take it.

just to add, lots of people do get their 'normal' entitlement on mat leave - however companies do not have to do this - just better practice imo!

Why dont you come back to work the same number of days / weeks of annual leave you have left and then take that time as leave

the issue i have is that my leave year is jan to dec. I was unable to take holiday before birth as born on 1st jan (born early).

I had planned to go back in November but changed to jan. I had previously booked whole of Oct off. My employer is refusing to let me carry over and is saying that as I have not given eight weeks notice of early return theni cannot take it.

basically i have been screwed over. They have done this on purpose.

You continue to accrue your annual leave while you're on maternity. This is during the whole period of maternity leave, not just during paid maternity. It's the law so your employer doesn't have a choice about it. Your employer must then allow you to take it after your maternity leave. Why are they refusing to allow you to take it?

I'm not a lawyer but I'm a fully qualified HR professional including employment law.

Annual leave is a benefit and as such acrues for the whole of your leave as it does for other staff (pay is irrelevant you get it for the whole time). As you cannot be on annual leave at the same time as maternity leave you accrue a full year's entitlement whilst off (assuming you hadn't used any unaccrued allowance before you went off). The statutory minimum for a full time employee is currently 28 days per annum. Your employer may offer more.

They must either allow you to take the leave before maternity leave, after maternity leave or pay you in lieu of leave (as they would if you were leaving the organisation).

There are loads of threads about this in the Employment Issues topic so pop over or do a search. I'm on my phone so link might not work but try m.direct.gov.uk/syndicationController?action=view&param=DG_175088&utn=d7bdf1f8f7fe424389b7201111012040 or Google "holiday pay maternity DirectGov" and it should appear.

Hang on, have you changed your return date without giving the required 8 weeks notice? If so that puts quite a different spin on things.

Just looked at the link but that link talks about what you get during statutory maternity leave which is up to 6 months - after that its classed as additional maternity leave isnt it so not sure it applies? I worked for a huge college at the time and they seemed to give exactly the minimun they could get away with and i queried it for weeks!

sorry just realised i'm behind the times - statutory was 6 months when i had my kids! But presumably the OP will still only accrue during the statutory period (9months) and not the additional period?

Statutory maternity leave is up to 52 weeks and is comprised of ordinary maternity leave (26 weeks) and additional maternity leave for the remaining 26 weeks.

The law regarding benefits during maternity leave became effective 5th October 2008.

I think you may be getting confused with statutory maternity pay Sunnyday which is only paid for 39 weeks (9 months). Statutory maternity leave is 52 weeks.

ah, i see! :) Mine were both before 2008

I was originally going back in November. they wrote to me asking if i was coming back..at all. i said yes but in January. I asked about carrying over holiday - they said no. last year i could carry over 5 days.

I said i would like to take my holiday in november and december and they are now saying i did not give them 8 weeks notice.

They are refusing to give me a payment in lieu or carry over. they basically dont need me back as they hired someone permanent for my job so they are trying to push me out as make me resign by making it impossible for me to return.

I see. If you take annual leave you are technically returning from maternity leave but whether this would be a problem depends on what was agreed in writing with your employer.

Did you specify an end date for your leave when you gave your employer notice of your maternity leave? And did they write back to confirm that within 28 days?

And when did you tell your employer you'd return in January?

Do you want to go back?

I just need a little more information to advise you of your next steps.

i originallu said i would be back at the beginning of Oct but would take whole of oct as holiday and so return would in fact be in November. They wrote to me after birth saying that my mat started on 1st jan and that my SMP would end on 1st Oct.

They then wrote to me on 1st Aug (i did not get letter until end as on holiday) asking if i would be returning..... They said i needed to give them eight weeks notice if i wanted to change the date.

I said yes i now needed to come back in january. they did not mention anything about my holiday. I then said could i carry it over. they said no.

I just assumed i would get the month i had already booked off.

They are now saying i cannot carry over/get payment in lieu or take it this year as i would then need to change my return to work day... and i cannot give them 8 weeks notice.

Well no you can't have the month you booked off because you can't be on annual leave and still be on maternity leave.

What I suggest you do is write to your employer pointing out you have accrued x days of annual leave during your year long maternity leave (how much you get depends on how your holiday entitlement is worded in your contract but it will be at least 28 days for fte). Then ask them if they would like you to take them immediately after your maternity leave which would make your actual return date Y date or will they pay you in lieu of annual leave instead as per ?

You will still get another full year's annual leave for 2012.

Thanks.Yes did that today. I am sure they will say no.

will have to make an unlawful deduction of wages claim but understand from acas need to go through grievance procedure first.so stressful.

Yes you will need to then make a grievance and then appeal it if necessary and then if that fails you can make a claim to an Employment Tribunal but not for unlawful deduction of wages. It is for maternity related discrimination and the missing holiday pay forms part of your losses.

You must continue to remain professional and reasonable and come January you return to work as normal unless something else happens - because refusing to pay or grant accrued holiday is a very weak reason on it's own to resign and claim constructive dismissal.

I would be very surprised if your employer took it that far. It's much more likely they're just out of date. You only have to look at this thread to see how easy it is to get confused if you're not an expert in employment law.

Katie are you sure she is entitled to carry over or have pay in lieu of annual leave not taken during the leave year?

If she was not taking SML she would be accruing annual leave which she would have to take before the end of the leave year. If she did not take it, I think we can assume that she would not have the right to carry it over or have pay in lieu. Why does being on SML give her the additional right to do that?

Yes i am sure because case law has confirmed the fact and statutory law says she must not suffer a detriment for taking maternity leave.

Incidentally it's the same for sick leave.

Thanks for that Katie, I had a feeling that there had been a case: I was hoping you could point me towards it?

Straight from CIPD website but there are other cases (am trying
to do bedtime or would have a proper look):

The European Court of Justice (ECJ) has held that a woman must be able to take at least her statutory minimum holiday entitlement under the Working Time Directive during a period other than her maternity leave. (See Merino-Gomez v Continental Industries del Caucho [2004] IRLR 407, ECJ and Federatie Nederlandse Vakbeweging v Staat Der Nederlanden [2006] IRLR 561, ECJ)

www.cipd.co.uk/hr-resources/employment-law-faqs/maternity-leave-holiday-entitlement.aspx