Leave entitlement during AML

[JennyWren]

Hi,

I'm about to go on maternity leave, but I have been having some problems establishing my maternity rights at work during my additional maternity leave - can anyone help?

Basically, as I understand it from reading the Maternity Alliance website and the government DTI and TIGER websites, whilst I'm on AML the statutory right to 20 days' leave per year applies - ie, I should be able to accrue holiday entitlement even when I'm off work on AML. When I had my maternity leave planning meeting with HR at work (about 6/7 weeks ago now - they kept delaying it because of holidays...) they said that this wasn't the case, so I printed off the official info I had and they said they would look into it. At the time, I thought that they just weren't really up to date on the legislation - I think that I'm the first person lately to have intended to take any AML.

But I've had a call from my HR person to say that her colleague in the other office is going on some training about it today, and can I go in for a meeting tomorrow - apparently, some new legislation is coming into force which says that the statutory leave entitlement DOESN'T apply during AML. I've been on the internet for ages but I can't find any info about this new change. Does anyone know anything about it? Is this right? And is there a set date from which it applies? I am due on the 11th June.

Thanks for your help. I think that forewarned is forearmed - I just want to know what I'm likely to hear, so that I don't get fobbed off with a load of waffle...

Jennywren - I work in Local Government and I am on AML at the moment. Basically, being on maternity leave is counting as continuous employment hence I am accruing the leave.

I have been on maternity leave since last August and the new leave year started in April. I am really lucky as my basic entitlement is 34 days and I am carrying forward 25 days from last year - so when I go back in August I will have 59 days to take. The usual practice is to add the leave at the end of the maternity period - but this would mean I wouldn't go back to work until November. My work is O.K with me taking a couple of days a week as annual leave - which means I won't physically work full-time until next Feb - hurrah.

Working in Local Government does have some benefits like this - not sure how it works in other sectors - which sector do you work in?

Hi Hotmama,

I work for a private agency, so not in government. I don't think they want to diddle me - I just know that they won't give me an inch more than they have to. I'm using some of my SML leave, which they are fine about, to go part time before I actually start my maternity leave, but the rest I'm not sure about. If I am entitled to leave during my AML, then I'll get paid for the leave I haven't taken this year (our leave year is Jan-Dec) when I go on maternity leave. But my plan was to keep my AML leave days to be able to either add onto the end of me AML or to stagger my return to work, or even just to make sure that I have enough days to take a family holiday after I've gone back to work, if we want to, next year. Otherwise I won't have enough days next year to be able to take the compulsory Christmas break and a fortnight's holiday in September, which is when we like to go away. If I'm not allowed to accrue holiday when I'm on AML, then I'll have to carry over my extra few days of SML leave to next year, instead of being paid for them. I haven't got lots of days left, but it would have worked out as being worth about 500 pounds before tax, and I can't afford to give that up without a fight!

You would think that any leave not used would be allowed to be carried over to the next leave year if you are on maternity leave - but I'm not sure what is the legal position. Also, I am not sure what is the rule about bank holidays - do these get added on as well?

Keep on bumping until you get some helpful advice. I'll be watching with interest too.

I know they'll let me carry over my unused leave from this year - my concern is that if I don't have to, I can afford to take a bit more of that unpaid leave!

I have to go out (antenatal appointment!) but I'll look back later and bump if I need to - hopefully someone who knows of any change in the law about to come in will post later this afternoon.

In the meantime, I'll post when I come out of the meeting tomorrow, and let you know what they say...

bump

Anybody??

Do I only ever write really boring messages!?

Any help for Jennywren?

I thought you only accrued leave during OML, not AML. But I could be wrong.

I don't think people are ignoring you JW - just don't know the answer. YOu definately do - under current legislation, accrue paid leave at 20 days per year during AML, but I don't know of any changes to that - and would suspect that if they aren't on teh MA website taht they aren't happening. Could you contact them?

I work for hmv and i took one year off on maternity leave and accrued a months holiday pay. Don't know if thats the law or just hmv being nice!

Thanks everyone. I'll go for this meeting in the morning and let you know - and if they still can't show me anything official that discusses a change in legislation that would cover my dates, then I'll call the maternity alliance and ask.

Either way, I'll let you know!

Well, I promised an update - and it's not good news. Apparently there is some recent case law which challenged the law, and won, and now there is a precedent for the statutory rights to not apply during AML. This is the advice the company has received from their solicitor and they won't back down on it.

I've tried to call the Maternity Alliance, but their information line is only staffed for 2 hours in the morning, so I need to call back tomorrow. I have asked my HR lady to get me all of the details of this case law, so I can see for myself and see if I can challenge it, but it has taken them weeks to confirm this decision, and I can't imagine that pulling their arses into gear over this is going to be a high priority - they just want me to go on leave and forget about it, or decide that it is too much stress on a pregnant woman to fight this. Which it is, or should be.

Oh, I'm just in a really bad mood about work at the moment - my team lead (not my boss, thankfully!) is laying on a real guilt trip about me not working all hours God sends, and my husband just wants me to start my maternity leave early and to forget about the holiday, for a less stressful life. I can see his point. On one hand, I don't want to do anything that will raise my blood pressure, jeopardise my pregnancy (I only have 4 weeks to go), or spoil my time off with my baby, but on the other hand it is not in my nature to back down over these things! I love my job, and I do want to come back after my leave. I've always worked hard for this company, and I'm angry that they are trying this on. It's a huge company - the money won't make a dent in their coffers, but it is a lot for me. And in so many ways it's not even the money, but the principle.

Thanks for letting me rant! I'm going to e-mail my boss, and let her know what is going on (she's working away at the moment, so I can't even talk to her face-to-face), and then talk it oer with my husband tonight. And in the meantime, I'll buy a huge bar of chocolate!

Well the EOC don't seem to be aware of this yet!

Have done some digging for you, and I think the case they may be referring to is "Commissioners of Inland Revenue v Ainsworth" (only 3 weeks ago) - which is actually a case about a man on sick pay and it's a bit unclear whether it also applies to women on AML. See here for a bit more detail and discussion of the implications, and here for the full judgement.

This has got me thinking - just checked our co's policies and it explicitly says holiday does accrue at 20 days/year during AML, but that the holiday must be taken in the year it accrues and can't be carried over. As I'll probably be in the position to be taking advantage of this next year() I'm now wondering if I should tell them now (wasn't planning to yet) just in case they change the policy. Does anyone know if it'd be the policy at the time I tell them which counts, or the policy is at the time of the AML?

LunarSea - thank you! I was really upset when I posted earlier (pregnancy hormones as much as anything!); now I've calmed down I'm less upset and more determined not to just roll over, but at least to understand it. I don't have to like their decision, but I owe it to myself to at least understand what is going on. I haven't read all the info you've linked for me, but I'll look this evening when I'm at home. I've asked for the details of the ruling they're basing their decision on to be sent to me by the end of tomorrow, so I'll compare that with your info over the weekend and make some decisions.

As for your situation - I suppose that any change would be similar to when these changes were introduced in 2003, where the law stated that the new rules applied to anyone whose baby was due on, or born after, a set date.

Anyway - I'll keep posting and let you know...

Oh that's interesting.
I can completely understand the point that annual leave entitelment is intended simply to provide a paid break from employemnt for H&S reasons, so people on long term sickness should not get extra pay, but would guess that if a company did decide to apply this to maternity leave there would be strong arguemnst that it was sexual discrimination not to give this extra payment to women.
I would probably attempt to bluff your employer JW - read and understand the case, and tell tehm that if they want to take it to the court of appeal you are more than willing to be the test case for this - see if they want to face the expense. I'm sure the Maternity Aliance,a nd possibly EOC would back any woman willing to go to court.

Actually - I probably wouldn't - I'd just give in. But I'd be extremenly impressed by anyone who had the balls to fight it.

You know, if I didn't want to go back to my job so much - it really is good, and I would be able to work it part-time around childcare a treat - I would fight it all the way. But I do want to go back, so I need to play my cards right. But I won't just roll over, either. So far, they've only told me this lot verbally, so I sent a polite but firm e-mail to the HR women asking for the decision and all of the details to be sent to me in writing, by the end of tomorrow. I still have a hope that if they realise that I mean business they'll roll over rather than risk a fight.

If not, I need to decide how far I want to push it. My dh has access to a legal helpline through his job, so if I don't get a better decision tomorrow I'm going to call them to ask my chances of overturning the decision easily. Then I'll take it from there. But surely I must have a fairly strong case - after all, surely if it was going to have a real impact on the law, the media would have heard about it and it would be all over the shop. The fuss that was made when these laws were introduced - if they look like being overturned, surely that would get some mention. I'm going to call the Maternity Alliance tomorrow as well, and find out if they have heard anything.

I'll let you know what they say.

I've just read the EOC website stuff and I think I understand the situation. I am happy that I'll not be getting my contractual leave (25 days/year) but only statutory leave, and I am happy to not be paid in lieu for it, and to take it in the year it is allocated. I will be interested to see what they say is the precedent for their decision, because I think the info that LunarSea found for me will probably do the trick. I hope!

Keep your fingers crossed for me...

Well, the upshot is that they are basing their justification on the Ainsworth vs Inland Revenue case. Not their decision, mind, because this was their decision long before the Ainsworth case was heard! Anyway, I've decided that for now my response is going to be something along thelines of
"I note and understand your position, but read with interest that case refers to sick leave, not maternity leave, and that it's application to maternity leave is expected to be tested in the courts. As such, I retain the right to revisit this when such a test case is heard."

It's not that I don't feel strongly about it, just that I don't particularly want to be the test case... I have enough stresses on my system with the imminent arrival of a new baby, without totally ruining my chances of a good return to a job that I do enjoy. I would definitely recommend though, that if you think you are going to be given this leave, you get it in writing, quickly!

Thanks to all of you - especially LunarSea for finding all that info for me.

Any news Jenny?

Jenny - I don't know if this would help you at all?

"Implications: Employees on long term sick leave will not have any entitlement to holiday pay under the Regulations if they have not attended work during the relevant holiday year. This principal will apply to other long-term absences including career breaks, but will not apply to maternity or other statutory leave, where different rules apply."

and this :

"... employers should not read the Court of Appeal's decision too widely. In the limited factual situations dealt with by the case (that is, those where the employee has not worked since the beginning of the leave year and has been dismissed or has not yet returned to work) the employer can avoid giving holiday pay, assuming that this does not breach the workers' contracts. However, outside those scenarios, there is no general rule that annual leave ceases to accrue if a worker is absent."

If nothing else these make it pretty clear that the ruling doesn't automatically apply to AML - and just having that info to hand might be enough to make them back down.

LunarSea - you have been a star, finding all this. Are you an employment lawyer, or a HR specialist, or are you a lay person who really knows where to look?

I sent my reply in this morning, and I haven't heard anything back yet. This is probably partly because the HR person in our building only works part-time, and wasn't in today. Although all of this seems to be coming from the senior HR person, she is based in another building and won't deal directly with me. She prefers to go through our HR person, which is fair enough in a way, but it does make me feel as if I'm always talking to the monkey instead of the organ grinder!

If I don't hear anything back tomorrow (which is my last day in the office this week, as I reduced my last couple of working weeks before I go on leave, I'll find some excuse to go past her office and see if she mentions it. I think I've put a fairly good case forward, and I've left it that I expect them to revisit this when the situation is clarified in law, but at the end of the day I don't think they'll change their minds unless a legal ruling says that they must. I just hope that someone brings that case soon, because I really don't want it to have to be me .

Jenny - I'm neither an employment lawyer, nor a HR specialist, but my job brings me into contact with legal judgements and case law a fair bit, so I've picked up a fair bit about where to find this kind of info. I also have a vested interest in this one as I'll be off on Mat leave myself next year!

Well, if you find anything new coming up, please shout about it, and I will too. I had a reply to my e-mail this morning - they just said that they would keep an eye on developments and keep me informed - they're not going to change their minds unless they absolutely have to. But I suspect that they won't leap to tell me anything they don't want to, so I need to try to keep up with it myself.

I haven't said before, I'm so sorry - a big congratulations to you on your pregnancy!