Maternity leave - holiday day accrued interpretation difference

[DerekDuvall]

Hi All!

My DP is due to deliver our boy later this year and is just discussing maternity leave. Her intention is for maternity leave to start as early as possible and for herself to be out of work even earlier then that. She plans to achieve this by means of using up her holiday and taking some unpaid leave in the month when her bonus will be paid out.

Her employer agrees with this in principal. It is a small company and the owner/director has been very happy with her recently and has recognized her contributions and acknowledged that it is a stressful job.

The point of difference in opinions is the following:

My DP believes that she is entitled to all of her holidays for this calendar year. So let's say 28 days holiday. She would like to use that during August/September and then go on maternity leave as early as possible. She would like to be on unpaid leave during July. That is when they pay out the bonus so she would not feel it or have her maternity pay reduced over the unpaid leave. She understands that it is the discretion of the employer whether this is feasible from business point of view, but that is not the question here.

Her employer believes that she is only entitled to the holidays accrued until her unpaid leave commences. So let's say 14 days in his opinion. He does believe she will accrue further 14 days before the end of the year and then further 14 in the second half of the maternity leave, but that she should take those after she is back. There is not really a business reason for her to be working BTW, it's just a viewpoint.

She has been working there for several years now. BTW her contract clearly states that in case of unpaid leave the holidays are still accrued.

I know that one should earn a right before exercising it, but most other employees anyhow take most of their holidays during summer. So most people are technically using in July what they will earn during August to December. Apart from those who maximize the Christmas break.

I tried checking gov.uk and it doesn't say anything on the topic. Some other blogs have ambiguous wordings.

Does anyone have a rule or an example of how is this handled?

Thanks a lot for your answers!

Isn’t this two questions?

one - does holiday accrue whilst on unpaid leave?

two - if she wanted to start maternity leave on (let’s say) 1st October, is she able to take the leave that accrues from 1 Oct to 31 Dec before 1 Oct?

Not sure about the maternity part but holiday leave is normally accrued and not normally taken in advance of earning it (as the person could leave employment). The other people taking holiday over the summer could have accrued their leave the previous year.

On question 2, I would agree with Gamechanger. Whilst people may “get ahead of themselves” in taking leave in a given year before it is accrued, I don’t think there’s a right to do so.

Usually whatever is the state of play with non pregnant staff needs to be across the board with the pregnant member of staff not disadvantaged.

So, if someone can use up all their holidays in the summer, without having to accrue them, then they shouldn't be disadvantaging her. If not, and they have to wait until they are accrued to use them, then fair enough.

Usually the accrual rule is only for the first year in an organisation, and after that they are awarded the full year's leave at the start of the leave year to take at any point. It gets very tedious to be managing that level of detail across even a small company.

Something you haven't acknowledged so just want to bring it up. When is she due? Just make sure her qualifying weeks (so weeks 19-25) aren't when she is on unpaid leave as it could fuck her maternity pay up.

@Gamechanger82

Yes - they most certainly are accommodating.

I'd like to stress something else here - not that it is important for the question:

She has also worked numerous never paid overtimes and never missed a beat and always made customer happy and returning. In the years she has worked there.

Yes, they are very accommodating, on the other hand she more than deserves it.

And if we are in the wrong about the number of paid holidays they will give unpaid. So it's just a question of rule/practice. It is not a conflict.

I think he meant they are figuring it out amicably not being combative

I started mat leave on 1 august last year. I took any holiday accrued up to that point in the year. Holiday accrued from 1 aug-31 july this year can be added on to the end of the mat leave, not the beginning. The employer is correct.

@AlisonDonut

That is exactly how they are doing it in practice. A lot of people with school children maximize their summer holiday. It was the same with me when I used to work. I think that my ex-employer would have been very happy if I wanted to take all of my holidays for a big trip in Feb/Mar. As Christmas and Summer were always difficult to manage. At her place they do projects so it is different, i.e. easier to manage. We had to have presence so anyone who wanted to take a holiday with unusual timing was more than welcome.

https://www.acas.org.uk/your-maternity-leave-pay-and-other-rights/holiday-and-maternity-leave

This may help.

• The holiday accrued may be taken before or after maternity leave, but not during. The employee should discuss with the employer and come to an agreement.
• The employer should let her use all of her statutory leave within the year it was/will be accrued.
• They can require her to carry over holiday or take payment in lieu for leave that goes beyond the statutory allowance.

@Gamechanger82

Not what I'm trying to say. Just that I do acknowledge that they are being accommodating indeed (and amicable throughout the whole conversation).

I'm not saying that she should get anything just like that. I'm just trying to establish a starting point for what is otherwise an amicable agreement.

The reason why I pointed her hard work is because I don't want her to come across as not thankful due to a story which I presented in medias res.

They will agree in the end. I'm just trying to establish a starting point. Is all.

Employer is incorrect.

However, if they have a policy that e.g. states no more than 2 weeks holiday can be taken at a time then they can enforce that which might prevent taking the full entitlement. But they are talking nonsense to say she can't take holidays she hasn't accrued (unless its in the first year of employment).

The employer is correct.

I think you have to recognise that for a small business to facilitate 3 months leave (annual leave and unpaid) prior to potentially 1 year of maternity leave is quite an undertaking.

Starting point coukd be to query that she hasn't had to accrue holidays before they can be taken previously and neither does anyone else in the company so what's the difference here?

They will agree in the end. I'm just trying to establish a starting point. Is all.

Yeah, she'll have to accept she can't do what she wants and the employer is correct.

“They will agree in the end. I'm just trying to establish a starting point. Is all.”

again, I think OP meant his DP and the employer would reach agreement in the end.

That's not correct. It is only in the first year of employment that employers can restrict leave to that which has already been accrued. Thereafter they cannot, and in theory you can take the whole of your leave for the subsequent years right at the start of each leave year - but the employer can refuse to grant leave.

So provided that she has the leave during this leave year, she can take it all before maternity leave. But any falling into the next leave year after maternity leave starts would have to be taken at the end.

@Gamechanger82

"they will agree in the end" not because I intend to threaten the guy but because they are on friendly terms and because they have already agreed for most part.

I was trying to stress how amicable it all is. Not that we intend to fight it through.

She is not sure about leaving or not. They want to keep her beyond that and they are happy to make reasonable adjustments exactly in order to keep her.

Yes - it is a small business, but they work on a project to project basis. Her 6 months project is coming to an end and she will not start her next similar project. Business owner is actually happy for that. Much happier than being informed mid project. Which others have done before - not for a maternity leave but they did it.

I may have not stressed enough how amicable it all really is.

Anyhow - I believe I've answered most of your questions and thanks for the contributions.

If you wish to make further comments you're more than welcome. I'm afraid I won't be able to clarify as I'd like to thank other people for their comments as well.