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Maternity, sick and annual leave problems.

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Just a few basic facts first.

I found out I was pregnant on 18/11/2007.

I started work for my employer on 26/11/2007.

I was signed off sick on 4/1/2008 and am still off sick now.

I start my maternity leave on 11/05/2008 (29 weeks), baby is due 30/07/2008.

I am not entitled to smp as I haven't worked long enough, which is fine as I get full maternity allowance due to also being self employed.

i work from home for a large company.


I had a phone call from HR last week and was told I am entitled to 5 weeks holiday and I can take it prior to my maternity leave (holiday entitlement hadn't even crossed my mind until the phone call). I emailed her later when I realised I didn't have 5 weeks before my maternity leave started and she replied stating that as I was signed off sick from 4/1/2008 then I had only accrued holiday from those 4 days (holidays Jan 1st-Dec 31st). I also got an email today saying that I don't accrue holidays while sick but I do while on maternity leave but I can't take them the next year or before I accrue them, so in effect will lose my entitlement from 11/05/2008, when I start my maternity leave.


So basically, do I accrue holidays whilst sick?

Do i accrue holidays while on mat leave?

Are they allowed to refuse me the right to take my leave next year?

I am sorry so many questions!

Please ask me anymore questions if I haven't made any of this clear.


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All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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The issue of holidays and maternity pay has become a little clouded as there are cases before the European Court as existing opinion could possibly be affected by the terms of the Working Time Directive.


One such case is connected with holiday accrual whilst on long term sick. There is case law to confirm that holidays do not accrue whilst on long term sick leave (as 'leave' by definition means being given leave from work, so how can this be possible if one is not actually 'at work'?). The Appeal Court overturned an earlier ruling and it was concluded that holiday does not accrue whilst an employee is on long term sickness absence, but a further appeal has now gone to ECJ.


Holiday used to accrue during the period of Ordinary Maternity Leave but not Extended Maternity Leave (if exercised). Once again there are problems in adopting this principle as all employees are entitled to a minimum period of paid holiday, and as maternity does not alter the status of employment it is a grey area.


Untaken holiday. Debatable again - it has always been the case with many employers that there should be a 'use it or lose it' policy laid down by contract, so the contract should be the first thing to check. Again there is a complication with the Working Time Directive which, if tested, could determine that an employer has to grant the statutory minimum holiday entitlement, so if there are unavoidable barriers to taking the holiday then the employer should carry them forward.


Basically there are various opinions and cases pending. It isn't just a question of the WTD but also that if found on the wrong side of any interpretation, employers could be accused of Sex Discrimination on the grounds of pregnancy. It may be worth pointing out the problems and putting the ball in the employer's court about how they suggest that the matter be resolved.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.






If I have been helpful in any way - please feel free to click on the STAR to the left!


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