Contract says can’t carry over annual leave to next year - is it different as I’m on mat leave?

[Lilyandroses]

Currently on sick leave due to perinatal mental health. I’m due to take annual leave before mat leave but as I’m on sick leave they may just move my mat leave forward to start at 36 weeks (I’m 32 weeks now)

Boss called me yesterday and told me I’ll lose all my annual leave as my contract says I cannot carry over to next year. Which I understand, but isn’t it different as I’ll be on maternity leave? I assumed I’ll still accrue my holiday and be entitled to it after my mat leave ends

does anyone know? Thank you!

According to the citizens advice -

"You build up holiday as normal while you’re on maternity leave.
If you can’t take your holiday because you’re on maternity leave, your employer should let you carry over up to 5.6 weeks of unused days (28 days if you work 5 days a week) into your next holiday year."

www.citizensadvice.org.uk/work/maternity-and-parental-rights/check-your-maternity-and-parental-rights/rights-while-pregnant-or-on-maternity-leave/rights-while-youre-on-maternity-leave/

Because you're off sick you can't use annual leave so they should let you carry it over. Are you a member of a union or can you contact your HR department?

@itsmschanandlerbong Thank you
Unfortunately I only work with 2 people. One is my boss and the other is another employee around the same age as me. So my boss is HR.

You still accrue annual leave while on maternity leave, even if it crosses a usual 'leave year' for your place of work, and you are entitled to take the annual leave after your maternity leave ends.

If it makes a difference for you financially, you can ask to take annual leave instead of sick leave if you wish. But yes, at 36 weeks if you are on maternity-related sick leave your maternity leave will automatically start.

@AmericasfavoritefightingFrenchman Thank you. So I’m due to take annual leave from the end of March up until my due date which is beginning of May (so around 25 days annual leave) I was going to ask my doctor if he can sign me off until end of March and then go straight onto annual leave so I can use my years holiday up before my mat leave starts but my boss said I cannot do that.

If you start maternity leave early you could take the annual leave when you go back either in a block or a bit every week to ease yourself back in. So you don't lose out. But you will have to convince your boss to let you carry it over.

What reason does your boss give for why you can't do that?

Not knowing when your leave year runs, have you accrued that 25 days already? If it runs in line with the calendar year you may not have that many days to use up front. You can only take the annual leave that you will have accrued by your due date before your due date. What you accrue from May to the end of the leave year is then carried over along with what you earn from the start of the new leave year to the end of your maternity leave.

Is the annual leave for 2023? Using it all in one go in the 1st half of year may not be allowed. Also, your sick leave should cover the oeriod you're sick, asking for it to specifically end when annual leave begins may sound like you're playing the system.

@AmericasfavoritefightingFrenchman @Scottishgirl85 Thank you, yes my annual leave only started in Jan so you both may be right that I haven’t accrued all the holiday yet to take before my mat leave. This is my first baby so I didn’t know that, I just thought you could take it before or after. That makes sense - so I will probably be signed off sick until mat leave starts and can then use my annual leave after my mat leave ends which is next feb.

But my boss still thinks I do not accrue any holiday to use next year after my leave. So I think I will have to speak to citizen advice

Sounds like your boss needs to do some reading up on maternity rights. And his/her responsibilities!

Ok, if your leave year started from January and assuming you get 28 days holiday per year you would have accrued 9 days and a bit to use by the end of April.

It's pretty easy to work out - take your total of annual leave days including any bank holidays and divide by 3. Don't forget that if you are going to be off on a bank holiday in between - or were off on the 1st January - you need to subtract those days from your total.

If it helps you financially to take some days of annual leave rather than sick leave before your maternity leave starts, it's worth talking about it with your boss. He may prefer that you use as much annual leave as possible too. In that case, even if it sounds like playing the system, if it is to your mutual benefit go ahead.

The citizens advice link above would be a decent one to show your boss to explain your entitlement to accrue leave while on maternity leave.

You may like to use your annual leave in a block to replace some of the unpaid part of maternity leave, or with your boss' agreement to do short weeks initially on return. He is allowed to ask you to take it within the first three months of returning.

Yes you definitely will accrue holiday throughout 2023 and can carry over (the amount you can carry maybe written in your work policies). But it's unlikely you can use it all upfront before May. Like it of not, maternity leave can be a pain for small businesses, especially as you have left very early. But as long as you're being truthful and fair and following proper procedure your boss has to align.

Your boss is wrong.

By law you accrue holiday during mat leave which can be taken before or after your mat leave. Some employers pay holiday pay instead.

Here is a helpful explanation by ACAS which is a government body:

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

Key quotes: “By law, your employer must allow you to take your statutory holiday entitlement during the holiday year.“
and
“You should usually take all your statutory holiday in the holiday year. But if you're not able to use it because you're on maternity leave for all or most of the year, your employer must allow you to carry it over.”

and the real kicker:

“If your employer does not allow you to take your holiday entitlement because of your sex, pregnancy or maternity, it could be discrimination.”

@Scottishgirl85 Yes I can imagine for small businesses it can be quite a hit if someone gets signed off or goes on maternity leave. I feel guilty about it daily, but agree as long as I follow proper procedure then that’s all I can do. I am going to citizen advice walk in on Thursday and they are going to talk through everything with me

I'd put it in an email.

'Hi boss, can you please confirm by return that you told me on the phone on X date, that you are not going to carry over my annual leave when I return from maternity. If I could have that before a meeting I have on Thursday that would be great. Many thanks'.

As it would be illegal to do that. Asking for it in writing will help you fight this.

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

Your boss’ actions could amount to maternity discrimination if he doesn’t follow the above.

Got sidetracked before posting and @Northby beat me to it 😂

@Lilyandroses there is case law relating to sick absence which means you shouldn’t lose it. Stringer vs HMRC www.xperthr.co.uk/editors-choice/hm-revenue-and-customs-v-stringer-and-others-2009-ukhl-31-hl/94368/

I know this is NHS but sets it out well www.nhsemployers.org/articles/accrual-statutory-annual-leave-and-sickness

As pp have said you then have protection whilst on mat leave.

If you are not able to take your statutory minimum of 28 days’ paid holiday within the holiday year because your maternity leave overlaps your holiday year, you must be allowed to carry it forward and take it at another time, - taken from here: maternityaction.org.uk/advice/discrimination-during-maternity-leave-and-on-return-to-work/

also try ACAS www.acas.org.uk/

This. Only this.

Send it to your boss and maybe kindly suggest you work it out together and if he/she won't..? Call ACAS.

I'm sure they legally have to let you carry it over if you cannot take it. My holiday year runs from April- March and I took maternity leave from April - April and then used the leave from the year I was on maternity.