Annual leave during maternity leave

[Thinkythonk]

Hi everyone

I'm hoping someone can help me out with a situation at work.

I'm going to be on maternity leave from 1st Jan for the whole year and my annual leave runs from 1st Jan until 31st December.

My contract says my annual leave entitlement is 25 days not including bank hokidays.

We work most of the bank holidays which we then get back in toil, and then the Christmas ones the office is closed.

I know I won't accrue the bank hokidays as I won't be in work to get toil, but this then only leaves me with 25 days annual leave when the statutory is 28.

I've raised this with employer and asked them how this can be right as I will be accruing less than the minimum but they've been very clear in saying that I only get the 25 days as that's what's in my contract.

I think they're saying I am essentially going to be off for the bank holidays so therefore I have taken them and would have had over the 28 days.

They have now said to me I can have it my way if I want but they will have to deduct all the bank holidays from my 28 days which will leave me worse off.

Can anyone shed any light? I'm getting really conflicting info from my research.

Acas says I should accrue 28 days but maternity action 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."

I don't know if I'm reading it wrong, but that last bit says to me its a grey area?

I think the legislation is saying that if your allowance is at least the 28 day statutory minimum and that includes bank holidays and any other fixed holidays (e.g. company shutdowns for Christmas), then you should be allowed to take the full allowance when you choose.

As your allowance is 25 days not including bank holidays then your total is more than 28 but you are only entitled to take the 25 days when you choose. As you won’t be working bank holidays then you won’t get TOIL so aren’t entitled to take the equivalent days at other times.

Does that help?

Surely you should accrue your 25 days plus bank holidays?

Does your contract say anything else about bank holidays? If you get TOIL for working them it sounds like your employer recognises that they are equivalent to days off.

@princesssarene but that means for the year I am on maternity leave I will only get 25 days annual leave. So for that year I will get less than statutory. Obviously it isnt a problem the rest of the time because I get the bank holidays to top me up to the 28 days.

@robs20 that's a whole even more complicated debate 😂 from my research that really is grey, but i was hoping the 28 days would be more clear at least! My employer has said I don't get the bank holidays on top of the 25 days as I'm not in work to get the toil. I can live with that but I want my 28 days!

No I don't think it says anything else about bank holidays. They are a rubbish organisation who give the absolute minimum so I wouldn't be surprised if its not mentioned so that people can't use the contract against them. I do think it could be an implied term though.

I'm not really after the bank holidays though I just want 28 statutory days!

I'm very shortly due to return to work after a year of maternity leave . As far as I'm aware you should accrue your leave entitlement plus bank holidays regardless. My previous employer for my first baby I had 25 days plus 8 bank holidays & I accrued all of this while off. My current employer we get 33 days which include bank holidays (bit stupid really as we have to use the extra days on the bank holidays). I have accrued all of these days while off too.
Worth double checking & getting them to properly explain the system.

I assume you get 25 days holiday plus 8 days leave in lieu of bank holidays, which gets you to 33 days. To not allow you to have this due to maternity would be direct discrimination as the reason you are not being given the leave is because you were on maternity.

You accrue your holidays as if you were at work. You can't be discriminated against because you're on mat leave.

You are 100% entitled to your contracted 25 days PLUS your 8 bank holidays, it's all online for reference, you can copy and paste from acas website and send to them.

You are entitled to the 25 days plus the 8 bank holidays. Definitely. They cannot discriminate against you because you are not physically in work, you have the same rights as any other employee wrt holidays.

Thanks everyone, I spoke to a solicitor through "pregnant then screwed" about the bank holidays and she told me the bank holidays were a bit grey and that if she had to pick a side it would be my employers.

My contract doesn't say anything about getting the bank Holidays in lieu and I think that's what makes it grey. All it says is 25 days excluding bank holidays, which is why Im concentrating on getting the 28 days statutory. I really didn't think my employer could argue with that but I was wrong!

Although I do agree it's discrimination for me not to get them I think it's too big a battle, I just want my 28 days!

I think the situation is every full-time employee gets 25 days free choice the office is closed 25th and 26th December and 1st January which gives everyone the legal minimum of 28, if you so happen to work one of the other bank holidays you get a day in lieu, so an employee that works full time and actually worked Easter Monday gets a day in lieu employee X who works Tuesday-thursday every week doesn't get a day in lieu as they don't work Mondays anyway

Your employer could let or maybe make you carry the annual leave forward and add it on to maternity leave in January 2021, they could make condition that carried forward leave has to be used in a certain period, DH's employer makes you take anyleave carried forward by the end of January,

Hmm, yes. Thinking about this some more, you should be entitled to the same total leave allowance, so that would be the 25 days plus bank holidays.

Which is interesting because that’s not what happens at my workplace... However, I’m part-time so I get a pro-rata amount of the leave allowance plus a pro-rata number of days for bank holidays. So that’s what I’m getting for during my current maternity leave (the pro rats equivalent of 25+8). Which means that I’m getting a better deal relative to my colleagues who are on maternity from full time. Not sure my HR department would like me bringing that up though!

I went through something similar with my previous employer, and spoke with an employment solicitor. As you've discovered, it is a grey area, and in terms of the relevant case law you can find examples to support either side... In short, you could pursue it through official channels, but the cost of the solicitor wouldn't make it worthwhile. In my case, I just kept pushing the issue with HR and they eventually gave in - probably just so I'd leave them in peace! I found ACAS to be totally unhelpful. They said they weren't able to interpret my contract, and just asked me what did I think I was entitled to...

Sorry to jump on this here but when you are saying you have accrued 28 days or 33 days for example, those are working days right? With my last wee one I had to take the lump sum cause I moved to a new job after mat leave. So 28 days of accrued leave would actually be almost 6 working weeks then?

Hi
If your employer fails to adhere to your contrat due to maternity reasons this is a breach of the law and you have a very big claim.
It would be deemed as discrimination under the equality act and maternity regs.

It be interesting to see how your contract is worded.

The minimum holiday entitlement is now 28 days and can be inclusive of bank holidays.
If your contract states 25 plus 8 then you accrue as normal during your mat leave.

Check Acas website or gov.com

Acas has comprehensive information on leave and holidays in the pdf icon Advice leaflet - Holidays and holiday pay [266kb]

This happened to a friend of mine. Employer wouldn't give her bank holidays
back after maternity leave. She actually took legal action against the company which found in her favour. The company then had to back pay every one who had been on maternity over a certain period of time for the bank holidays. If you can afford to, fight it.

Is it not just that your employer sees you as having taken your Bank Holidays (by default), and your ML for the rest of the usual working days? Leaving you with just the 25 to carry over?

I don't think I'm entitled to the bank holidays because my contract doesn't mention them.

I just want to know if they should be giving me the minimum 28 days. @springlake yes I think that's how they're seeing it, but I don't see how they can say I've accrued 28 when Im on matenrity leave for 2 of them.

But its looking like they can!

Does this not mean though that an employee could have in their contract '20 days annual leave not including bank holidays' , and then if they went on maternity leave they would only get 20 days?

So maybe I'm actually lucky 😂

You accrue your terms and conditions of employment whilst on mat leave.
You cannot have holiday statutory or other AND Mat leave.
The mininum starutory is 28 days annual leave or 5.6 weeks by law. Pro rata if part time.
I am a HR professional and this is how i advise my employer and clients

Thanks @hrer love the name by the way 😂

I did think that was the case but they are point blank refusing to accept this. Would you agree its the gomez case law that establishes what you've said?

I don't mind taking it further with them but if the area is grey and they could potentially be right then Im less inclined!

The info below will help.... and from a good source.

Generally speaking, your contractual terms (except those relating to remuneration) continue during maternity leave. The right to accrued annual leave is not classed as “remuneration” within the meaning set out in the Maternity and Parental Leave etc. Regulations 1999 (MPL Regulations). Therefore you continue to accrue your statutory paid annual leave entitlement under regulations 13 and 13A of the Working Time Regulations 1998 (WTR 1998), currently 5.6 weeks.

Annual leave cannot be taken during maternity leave and your employer must therefore allow you to take your holiday entitlement outside of the leave period. However, your period of maternity leave will span two leave years and it is not always possible to use up the current year’s annual leave entitlement before starting your leave. The European Court of Justice (ECJ) has ruled that that the combined effect of the Working Time Directive (WTD), Pregnant Workers Directive (PWD) and Equal Treatment Directive (ETD) is that member states of the EU must ensure that employees can take their statutory annual leave at a time other than their maternity leave. The ECJ has held that this applies not only to the four weeks’ leave guaranteed by the WTD, but to any greater statutory leave entitlement under national law (Merino Gomez v Continental Industrias del Caucho SA).

Although the case of Merino Gomez did not mention the need to carry forward leave (as the question did not arise in that case), subsequent case-law on the interplay between sick leave and holiday has made it clear that accrued annual leave may need to be carried over if it cannot be taken in the year in which it accrues because of sick leave. By extension, this principle would apply to maternity leave. Although on its face the WTR 1998 do not permit carry over of the leave, the Court of Appeal has ruled that words can be read in to give effect to EU law in this regard.

Is carry-over of contractual annual leave required?

There is no explicit mention in Merino Gomez of the position of contractual holiday in excess of the national statutory minimum, and there is no other ruling on this point. Many employers who offer contractual holiday in excess of the statutory minimum allow women on maternity leave to carry the unused balance of their full contractual entitlement over as a matter of practice. Their reasons for doing so may be a mixture of caution due to the lack of clarity in the law and a desire to be seen as a family-friendly employer. However, it is strongly arguable that this is not strictly required on the current state of the case-law.

Public holidays

There is still no statutory right to time off (paid or otherwise) on any of the 6 bank holidays and additional 2 public holidays annually (collectively “public holidays”). Whether a worker is required to work on a public holiday is a matter for their contract or, in some cases, simply the employer’s managerial prerogative. The legal position is complex and I would suggest that you take further specific advice on this point.

Bonus Payment

Sums payable to you by way of salary are not payable during maternity leave. However, you are still usually entitled to be paid for any bonus which is awarded by your employer whilst you are on maternity leave irrespective of your Statutory Maternity Pay, depending on the criteria for payment. A failure by your employer to pay the bonus, or the amount of bonus paid, may (depending on the circumstances) give rise to an equal pay claim, or a claim for discrimination.

Next Steps

In light of the above, if you feel that your employer is not complying with its duties then I would suggest that you raise the matter informally with them. If this does not resolve the problem then I would advise that you raise a formal grievance about the way they are handling your situation. If this does not then conclude matters to your satisfaction then I would recommend that you seek further independent legal advice to discuss your options.

Please note that any discrimination or equal pay claim needs to be submitted within three months of the incident. You would also need to go through the Acas pre-conciliation procedures before the claim would be accepted.

Should you require any further guidance on any of the issues listed above then please contact Tracey Guest of Slater Heelis LLP on 0161 672 1246.

Statutory Maternity Pay and Leave: employer guide - GOV.UK web site is worth copying and sending to your employer

most people's maternity leave falls in two separate annual leave years it is unusual for someones year off to exactly coincide with a calendar year and annual leave year
obviously in the year 2020 you will accumulate a minimum of 28 days
because maternity leave and holiday leave can't take place at the same time you can't take your leave in 2020, so you will have to be allowed to carry it forward, however they could insist that you take the first 28 working days of 2021 as paid annual leave and return mid february than have 2021's allowance over the rest of the year

you perhaps may need to consider if you for some reason need to start maternity early could you use some of the accrued leave for 2020 at end of december 2019 if they would allow this
alternatively if you need to start maternity early say 1/12/2019 you would be able to add on 2020 annual leave to your return date of 1/12/2020 so you still got all 2020 off