Can bank holidays be added to maternity leave: ask the expert

Your employer has refused your request to an extra nine days holiday to cover the public holidays missed during your maternity leave (there was an extra day because of the royal wedding).

The Employment Rights Act 1996 provides that a woman is entitled to all her terms and conditions during both the ordinary and additional maternity leave periods (OML and AML), apart from remuneration, as though she was at work. The question is therefore are you contractually entitled to be paid for public holidays?

When answering this question it is necessary to consider both your contract of employment and the minimum statutory holiday entitlement for employees.

Looking at the minimum statutory entitlement, under the Working Time Regulations 1998 (as amended) all full-time workers are entitled to a minimum of 5.6 weeks paid annual leave. Employees are included in the definition of a worker. This minimum 5.6 week entitlement amounts to 28 days. Part-time workers are entitled to the pro-rata equivalent.

Public/bank holidays can be included in or excluded from this statutory entitlement – as decided by an employer.

An employment contract will set out an employee’s holiday entitlement which can be more than the statutory minimum. If the contract provides for less than the statutory minimum then statute overrides the contract. If the contract allows for paid public holidays then these days should be part of your holiday entitlement and will accrue during maternity leave.

In your case, based on the facts supplied, your contract gives you 28 days excluding the public holidays. It is not, however, clear under the contract whether the public holidays are actually paid, but based on your contract they do not appear to form part of your holiday entitlement.

You have stated that throughout your employment you have been paid for public holidays, presumably when the office was closed. There is a strong argument that you have a contractual entitlement to paid public holidays when the office is closed on the basis that your employer has created a “custom and practice” that it will pay its employees during each public holiday when its office is closed. This “custom and practise” has changed your contract and given you a contractual entitlement to be paid for public holidays.

However, your employer may argue that this contractual entitlement extends to the actual day of the public holiday it pays those employees who would normally be at work but for the closure due to the public holiday. Your employer may try to argue that employees on maternity or long-term sick leave are not paid for public holidays. In practise, your employer paid you for example on Good Friday and Easter Monday, but presumably never allowed you to work these two public days and take two days extra holiday during the holiday year. Therefore your employer will argue that the payment related to that day only and you could not use that day instead as extra holiday to be used at a different time. The obligation to give a woman substitute leave for a contractual entitlement to public holidays that she was unable to take during her maternity leave was reinforced by the European Court of Justice (“ECJ”) decision in Gomez in 2004. This case concerned a fixed holiday period that fell during Ms Gomez's maternity leave. The ECJ held that a woman must be able to take her annual leave at a time outside her maternity leave. Bank/Public holidays are effectively a fixed day's leave and it is believed that this principle should therefore be applied in such cases.

I think that you have a strong argument that through custom and practise you have a contractual entitlement to public holidays which should be added to your maternity leave. Tell your employer about the Gomez case. If your employer still refuses, you can raise a grievance for non-payment of wages (holiday pay is included as wages) and potential sex discrimination.

My answer has been based on the facts provided, but I would suggest that you seek advice based on a review of your employment documents/actual situation.

Ruth Renton is the founder and director of Renton Associates Ltd, providing commercial and practical Employment Advice and Training in the Workplace. She is also a working mum of four kids – her biggest challenge! To contact Ruth for advice or training please email her on ruth@rentonassociates.com. Her website is www.rentonassociates.com and she can be found on linkedin.