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!

The employer kicks themselves for not having a decent annual leave policy preventing people from taking all their holiday in one month 😬

Her employer is right - she will not have accrued a full years leave before she goes off, so can only take what has accrued to that point

Make sure she is aware of her qualifying weeks as if she takes those unpaid it will affect her statutory maternity pay

@SheilaFentiman

Thanks a lot for clarifying my hastily written comments.

Yes - I was stressing that they will agree because they have both expressed that they very much want to agree and that they just need to finalize the details.

At the end of the day they want to keep her for longer. She is not sure about it, but is also inclined to stay there for longer if they can find a good part time balance after her leave is over.

Again, thanks a lot for the clarification of what I meant to say. It was a bit distressful to read the other comments where what I wrote was interpreted differently. So I appreciate your clarifications quite a lot.

Op the employer is 100% incorrect unless she is in her first year of employment.

Especially as you have also confirmed others do not have to accrue before being able to take them.

@Megifer

My own previous employer actually allowed and encouraged this in our contract.

BUT - they also clearly wrote that in case we resign before the end of the year we will have to pay it back.

Then again, all was manager discretion there anyhow.

The employer can recoup money from your final paycheck if you have taken more leave than you have accrued.

@mummyh2016 @PickledPurplePickle

Thanks for the comments about the unpaid leave affecting her rights.

The way they agreed is that it happens in a way which doesn't interfere with the rights.

So quite accommodating by all means I do agree.

Doesn't matter. If they allow others to take holidays before they are accrued, and now don't allow op to do this because of maternity leave, it is discrimination.

This is why it is important for employers to make sure they have annual leave policies that mitigate these risks.

The accrual is only relevant for Year 1 of employment/pro-rata in some organisations and def not in this case

Let's assume a hol year runs Jan1st-Dec 31st

Pregnant employee gets 28 days holiday per annum and hasn't taken any by the time she goes on mat leave (let's assume 1st July)

So sh has 'accrued' 14 days. However, she cannot take holiday AFTER the birth of baby whilst on mat leave so she cannot, in effect take the remaining 14 days in this holiday year.

Which breaches the law as the employee is required to have taken statutory holiday as a minimum in that holiday year.

Is amazed the employer would want her to carry over most of this years leave as it essentially makes next year harder as the returner will have a boat load of holiday to use in about 6 months

Urgh misread your comment. Sorry!!

No she won’t because she will accrue the remaining holidays through her maternity leave.

@SheilaFentiman

I'll copy your question here:

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?

It would have been 2 questions - but their policy is actually clear on the first. They have certain days of unpaid leave as a perk and they accrue holidays within those days. I have no idea how it would have been otherwise.

They do a lot of unpaid leaves because the work is on a project by project basis and most staff are expats (and not from EU but from further) so they appreciate the extra freedom and in return accommodate a schedule which is not always 9 to 5.

@Gamechanger82 you do seem to be making the most aggressive interpretation possible.

If the DP goes on maternity leave without taking all her 2023 holiday and then decides not to return, she has still accrued that holiday and it would need to be paid to her on leaving the company (or she would “return” for a few weeks but all of those weeks would be using up holiday).

She’s not cheating the employer out of anything!

@Lougle

Thanks a lot for this! This, if correct, is quite clear.

(And I've found where the "quote" button is)

What does the maternity policy state? I had to take all of mine for the year up front as it was in the policy. I ended up going off last week of August and didn’t start maternity until October. I also got bank holidays and additional contractual days that my work typically give

@Summerdayz530

Sadly they don't have one - which I understand. They are a small company and they write down policies after they encounter questions for the first time. So by virtue of not having a policy they will apply whatever is statutory or the law.

In any case your case would have been perfect for her.

But as I said earlier they are quite accommodating indeed so it is most likely to be resolved in a good way for both parties.

Just to flip it then, can she not start her maternity leave early and then take the annual leave before returning?

Im planning to use my accrued holiday for a phased return to work…

@Summerdayz530

She already is going for the earliest possible, that's the catch. And then she would like to go even earlier hence the holiday and the unpaid leave. And employer is happy with that. It's just the question how many days of leave will be unpaid and how many will be holidays. She could take as much unpaid as she wants (well, once her projects are over) but that would s*w up her allowance in the first 6 weeks.

Wow, I never knew any of this! In my job my employer is allowing me to use the last of my holiday entitlement for the year before I go on leave at the end of September. I'm guessing that's because while I'm away I'm still legally employed. Then if I want to I can use whatever has accrued up until my return date at the end of my leave.
Honestly I thought all companies did the same. Crazy.

This is what happens where I work. You take your full years worth of AL before going on Mat leave (so leave you would accrue between Jan-Dec, even if mat leave starts in August) and it is completely normal for people to use all AL at any time in advance of the end of the calendar year if they aren’t pregnant too. You can’t carry it over.

I agree with this. She's got a good thing going there

No - the employee has to pay it back

I always suggest employees going on mat leave take their accrued annual leave prior to the start of mat leave so they get a bit of a paid break before the baby arrives and start their mat keave as late as possible to maximise time with the baby. I then explain that they accrue their contractual leave during the mat leave period and that it can be helpful to request to take this towards the end of the mat leave period when SMP ceases to switch their pay back on, or to use it to extend their mat leave.

The way above keeps things tidy and is generally perceived to be supportive.

Sadly op, it sounds as though you and your dp are gunning for a fight.