Holiday entitlement whilst on mat leave

[mikeym]

Please can you help as Govt. websites are so vague!

I am entitled to 28 days holiday under my contract - this is 8 bank holidays and 20 holidays (the stat minimum). My holiday year runs 1 Jan to 31 Dec. I am due early April. I know that I have to take holidya entitlement at the beginning or the end of mat leave.

Does this mean I can take the full 28 days before starting on SMP? Or, can I take only what I have accrued (prob 5 days by the time I start mat leav) and then take the rest at the end of mat leave? As I'm planning on taking the full year mat leave this would mean taking it after the end of 2014, and my contract doesn't guarantee that I can carry over holiday entitlement.

I am sure there is a simple answer, but I can't find it!

Thanks in advance

Mikey

The timing of when you take this holiday is usually by arrangement between you and your employer just like any other holidays.
In practice this varies from one employer to the next.
Some employers won't let you take it until it's accrued.
Some like you to take it before you go on leave.
Some prefer you to take it when you return.
Some suggest that you take some before and some after.

I would suggest that, to be on the safe side, you book and take at least the 5 days that you will have accrued before your leave starts.
If you would also like to take some of the 28 days that you'll accrue during your maternity leave, ask your employer - they may agree.

Don't worry about your contract not guaranteeing that you can carry over holiday entitlement. What your contract says is irrelevant; it doesn't matter even if your contract says that under no circumstances can any holiday ever be carried over.
The Law protects the holiday that you accrue during maternity leave.
Any part of it that you don't take before your leave starts must be carried over to when you return in 2015.
If you do carry any over, make sure that you take it by the end of 2015.

Um, that's not quite true about carrying over.

There is case law that employers must allow holiday to be carried over, but the case relates to at least your statutory minimum holiday under the Working Time Directive (ie 4 weeks), not to anything more, so it's still a slightly grey area in terms of holiday over and above that.

So there is the theoretical possibility you may lose it. This is more likely to happen if a woman starts maternity leave at the beginning of the holiday year and takes a year off.

You are entitled to accrue all your contractual holiday entitlement throughout maternity leave, so if you cannot take it because your employer prevents you doing so, you are suffering a detriment and could claim discrimination. But if your employer doesn't prevent you taking leave, they could only allow 4 weeks to be carried over and you may struggle to claim anything.

Anyway, in practice, most employers encourage staff to take as much holiday as possible before going on maternity leave, as it gets it out of the way, so I wouldn't panic unduly about losing it.

I would suggest having a chat with your manager, saying that you understand you continue to accrue holiday as normal during maternity leave, which means you will have quite a big chunk to take, and you would like to discuss when you can take it. Come to a mutual agreement.

If you mean in a sick leave case (Stringer, Larner etc) I agree.

But, in the case of maternity leave Gomez held both that a worker must be permitted to take her annual leave at another time and that the higher national minimum entitlement applies rather than the WTD's 4 weeks.

Funnily enough I wasn't meaning in a sick leave case, no, as the thread is about maternity leave.

I disagree with your view that Gomez or any other ruling has been 100% clear on the subject of employers' individual rules regarding carrying over holiday, in particular with regards to holiday over and above the statutory minimum. Although Stringer was about sick leave you can find plenty of opinion that it may have an impact on maternity leave also. I think an employee being denied holiday would be better off relying on the Equality Act. I would certainly advise clients to make sure employee take all their leave, regardless of internal rules.