Took 12 months ML and told will lose AL as haven't used it during the year

[vicki77]

Hi

Was hoping someone can help me. I am currently on maternity leave - started 30 March 09 and due to go back 30 March 10. This almost precisely coincides with our annual leave year.

I have been told that because company policy states that you can only carry over 5 days annual leave to the next leave year (in exceptional circumstances) - I will be allowed to carry over 5 days, but I will lose the rest of my annual leave i.e. 10 days.

I wrote back saying that I wasn't able to take annual leave because I was on maternity leave so I should therefore be allowed to carry all of it over. I consulted CAB who quoted some ECJ ruling which says something to that effect. I have also consulted working families who say my employer is in the wrong.

However my organisation wrote back saying that the only compromise they would make - would be for me to go back to work early and take annual leave instead of maternity leave.

I am not happy with this. For a start I do not have childcare for April so that puts me in some difficulty. Secondly with my first child, I took 12 months maternity leave followed by my accrued annual leave (with the same organisation might I add!). It is quite important to me to be able to spend this extra time with my daughter.

So what can I do? They are refusing to back down - I want to be able to take my maternity leave and annual leave which I believe I am entitled to. It seems so unfair. Is my only option to go down grievance/tribunal route? Presumably that takes a long time so it doesn't really help as they want me back in the office at the end of March.

I work for a children's charity - and have stayed there for 10 years because I thought that they would be family-friendly. Ha!

Thanks

Vicki

This thread might help you

I recalled seeing a similar sounding thread and I've found the thread above for you. I hope it helps and good luck with sorting things out.

I thought the ECJ ruling related to people who couldn't take AL because they were on sick leave? I don't think it applies (yet!) to people on maternity leave.

I work in the NHS and this is what would happen at my place of work too so I'm not sure you will get them to change.

Could you get at least some benefit by going back to work earlier to use up the 10 days AL then immediately take the 5 days that have been carried over?

Sorry - the benefit will be that you will start to be paid again earlier.

AFAIK, this is because it is unlawful for someone to take less than 20 (I think) days holiday in one year - it's to prevent unscrupulous employers (and workaholic employees) from carrying over all their annual leave and taking no holiday at all.

You just arrange a start date for when you officially go back to work, and take your annual leave from that day, so you go back on payroll but don't actually enter the office. It's the only way round it as far as I know; it's just unfortunate that your mat leave coincides with the holiday year.

It is really unfortunate that your ML coincides with the annual leave year. In hindsight it would probably have been better for you to have taken your AL before your ML and arranged to carry forward the 5 days.

"The ECJ did not answer the question of contractual holiday entitlement in Gomez as it was concerned with the issue of statutory leave under the WTR.

However, it did say that rights connected with the employment contract (other than pay) must be protected: "a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed for the whole period."

From www.thompsons.law.co.uk/ltext/l1510004.htm

It would normally be fair enough to apply carry over rules on maternity leave. Say you'd gone on maternity leave in January 2009, your employer would have just made clear that you needed to take the 2009 holiday before you started your leave.

BUT

If you can't take your leave for some reason - such as the dates coinciding with the holiday year, then yes, they should let you take the holiday. They may apply rules though - such as requiring you to take it immediately at the end of your leave and not carrying it forward indefinitely.

" work in the NHS and this is what would happen at my place of work too so I'm not sure you will get them to change."
i work for the nhs & was off for FY 2007/08, apr-apr. I carried mine over.

Would they allow you to take 10 days unpaid leave in April? If so, start back so that you can -work- have leave of 10 days in March, take 10 days unpaid leave in April (reason = no child care), take your carried over leave then you're back to where you wanted to be????

Thanks everyone for your advice. I think this is a really grey area which is why there are different views.

I think I'm going to have to go down the unpaid parental leave route - although if they want me back in work that much - not sure whether they will grant me the parental leave.

It still makes me cross that they are treating me differently. With my first child, I took all my annual leave afterwards - as have many people in the organisation.

Thanks

I think your employer sounds extremely unreasonable and I was able to carry over all my holidays after 11 months' ML. Have you looked on Dorect.gov.uk? I found this:

"Holiday entitlement
If your baby was due on or after 5 October 2008 you will build up all your entitlements to paid holiday throughout your Ordinary and Additional Maternity leave. This is even if your contract says you are entitled to more than the statutory minimum.

You can add holiday to the beginning or end of your maternity leave. You may not be able to carry over untaken holiday entitlement if your maternity leave goes over two holiday years, so it's often best to take this at the beginning of your leave.

For babies due before 5 October 2008 you can still build up your contractual holiday entitlement during your Ordinary Maternity Leave. During any Additional Maternity Leave you can only build up your statutory minimum holiday entitlement.

Sorry, that was meant to be direct.gov.uk