Maternity Leave and Holiday Accrual

[KER]

My company's holiday year runs from April 1st to March 31st each year and we get 25 days holiday each year.

 

My maternity leave started on 18th March 2008 and is due to end on 18th March 2009.

 

It is company policy that holiday cannot be carried over.

 

I wish to take my full statutory maternity pay. Can I ask for my complete

holiday entitlement to be added on to the end of my maternity leave as otherwise I have no other way of taking the holiday, or I have to lose it (unless they offer to pay me for it - but I'd rather take it!)

 

My thoughts are, if I have to take the full leave before the end of March 2009, then I have had to end my maternity leave early and it is my statutory right to be able to take those 52 weeks, which they are then surely overriding by making me "take the holiday or lose it"!

 

What are peoples thoughts? Do I have the right to ask to take the leave even though it falls into the new holiday year?

[ErikaPNP]

When you have been on ordinary maternity leave, you are still entitled to all the benefits you would receive whilst working, which includes annual leave. Annual Leave is still accrued and as you are unable to take it due to the timing of your maternity leave, yes you can carry it over.

 

They may well try arguing that you can't, as many employers unfortunately aren't up with or choose to ignore maternity rights, but you are entitled to it.

[KER]

Thanks, I can use that in a letter I write

[ErikaPNP]

Worth a look are these sites for maternity rights:

 

Pregnancy and maternity rights : Directgov - Parents

 

http://www.workingfamilies.org.uk/asp/family_zone/fs_pr1_matrights.aspv

 

Acas - Maternity rights

 

HTH.

[KER]

Hmm.. DirectGov says...

 

"You can add holiday to the beginning or end of your 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."

 

But I didn't have this opportunity... .....! which is where the difficulty lies!

[maroondevo52]

Hi, Ker.

 

I've been watching your thread, I was going to say It's always better to take it before your maternity leave.

 

Give ACAS a phone they should be able to advise.

 

Good luck with that.

 

Regards.

 

Scott.

[becka]

You should be able to take your holiday at the beginning of your maternity leave so that your actual maternity leave doesn't start until April and you don't return until April 09 ... and have an entire new holiday years worth of time to take!

[KER]

right, i wasn't given the opportunity (I left at the end of March 2008 due back end March 2009!)

 

Should I point this out that I wasn't given the opportunity to take the leave? What I'm really angling for is my 5 weeks holiday plus the 6 bank holidays on top of my leave so I get more time off!

[elche]

This is a complicated area. I know that the law is not exactly clear in this area and there is some confusion about how to treat stat holiday and contractual holiday entitlements.

 

The best article I have found thus far is:EEF : Does holiday entitlement accrue whilst on maternity leave?

 

Perhaps the ECJ will clarify some of this when they eventually decide the Stringer v HMRC case which is a case about right to holidays when on long term sick.

 

All I can say is that I know employment law consultants who advise companies to try to make the employee take the leave before the mat leave commences and only carry over the stat entitlement (0.8 weeks?) or greater amount if that is provided for in staff handbook (often about 5 days), any additional being lost. I'm not saying this is right, especially for cases where the employee was unable to take the hols before the mat leave started (like you?) but I have heard it given as advice.

 

Even though I can't advise further on this it may help future posts if you separate out your stat and contractual holiday entitlement.

 

Thus just to clarify OP are you saying you got 25 days + the 8 BH (and I assume your were a five day a week worker)?

Edited September 16, 2008 by elche
Gramatical

[KER]

Yep, Monday to Friday worker. Contractual holiday is 25 days plus bank holidays, but I left on the tuesday after Easter, so they are already accounted for.

[KER]

I've just done some research

 

In its judgement in Gomez v Continental Industrias del Caucho SA ([2004], the ECJ said that women on maternity leave must be permitted to take their statutory annual leave entitlement at a time other than when they are on maternity leave.

 

I might just WIN :D

Edited December 11, 2008 by KER

[elche]

Ker

 

I don't think it is quite that straight forward (** EDIT ** that comment was because I'm sure that originally your post said 'I Win' which now says 'might just win') I agree that 'might just win' is a much better reflection of the position as I understand it

 

1) My understanding is that the Gomez case applied to Statutory Holiday entitlement not contractual (in Spain it was 30 days in 2001) - Thus there is no guarantee Gomez would apply to any contractual holiday entitlement that you may or may not lose, over and above your stat min.

 

2) Gomez is not authority for the fact that if your mat leave straddles a holiday year that you would be able to carry over your holiday entitlement.

 

You say your RTW was going to be 18th March 2009 BUT your company's hol year runs out 31st March 2009.

 

Thus in order to get all your holidays your company would have to permit you to carry some over. Whilst they may well allow this the Gomez decision does not set a precedent that they would have to as this would potentially conflict with the WTR as they currently stand:

 

While on its face the decision is a clear one to follow, it raises an interesting question for UK employers: Can a woman whose maternity leave straddles two holiday years carry over any accrued but untaken holiday from the first holiday year into the second? The WTR, as currently drafted, would not permit this and the Government may now have to take steps to amend them.

 

But that said of course Gomez is overall a good decision for you.

 

Che

Edited December 12, 2008 by elche
Semantics