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Change to bank holiday accrual: ask the expert
I have recently found out that my employer has changed their maternity leave policy with regards to bank holiday accrual. It states in their FAQs: Am I entitled to bank holidays, Statutory and Extra-statutory Holidays whilst on maternity leave? Yes*. Bank holidays will be paid as a lump sum on your return to work. You will only be paid for those bank holidays which fall when you are in half and/or nil pay in order to reflect a full day’s pay. *The implementation date for this was 1 April 2013, so if you are already on maternity leave at 1 April 2013 or started maternity leave after the 1 April 2013 you will get paid for bank holidays, it will not apply to those who have returned to employment before the 1 April 2013. As I work for a university, in my contract we are entitled to 25 days annual leave plus an additional 12 that cover university closure. I have queried why they will only pay bank holidays from April 13 as all our terms and conditions of contract are the same. Their answer was that maternity regs provide no right to remuneration and this supercedes our contract. Can you confirm if they are correct? Surely I could argue I have suffered a detriment with this policy. Also, if I went on maternity leave since this policy change, I would be better off and get all the holidays paid.
There are two issues raised by your question: firstly, whether the University can amend their policy and, secondly, whether you have suffered a detriment.
Whether the University can change a policy will be subject to any clauses in their handbook and contract of employment. It may well be that they have consulted with the unions before making the change and agreed a start date for the change.
In relation to payment of annual leave over and above the statutory entitlement. The position is as follows: an employee must be given the right to take their statutory annual leave entitlement (whilst on maternity leave) which is currently 28 days. If an employee’s contract provides for 20 days’ holiday plus 8 public holidays, namely 28 days of statutory annual leave, then the employee must be given her right to take her statutory annual leave before or after maternity leave and cannot be paid for the public holidays. However, as in your case, the employee’s contract is more generous, i.e. you are entitled to 25 days plus 8 public holidays, so the position is more complicated. The position on statutory annual leave deals with your 25 days plus 3 of the public holidays. The question then remains as to whether you should be allowed to take time in lieu for the further 5 public holidays. This depends on whether the right to public holidays are viewed as essentially a right to remuneration or time off which can be accrued. Current UK authorities suggest that the additional holidays amount to the right to remuneration. There is ECJ authority which suggests that the right to holidays should be accrued. The University have taken the view that the right to holiday should be accrued, hence making the payment.
My suggestion is that you should raise a grievance in relation to this which may result in you receiving payment for the holidays.
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