Q And A
Boss used my holiday time without asking: ask the expert
I have just returned to work after 52 weeks off for maternity leave. I was due to be back in the summer and organised childcare etc for this. My boss told me that they would pay me maternity until November. I didn't think this was right and said so, but she was insistent that they could claim it back. On coming back on my first day she told me that she had used all my holidays to cover my time off from August. She apparantly sent me an email in assuming it was ok which I never received. I would never have agreed to her using my holidays and wanted to be back in August as I have been paying out childcare and not doing anything and frankly falling into a little bit of a depression the last couple of months. I'm so confused I don't know what I can do. I just know it feels wrong. She also wanted me to work 16 hours over 5 days even though I had told her I have arranged three full days of childcare.
Answer by Vanessa Wheeler
You have raised two issues:
1. The annual leave
All employees accrue annual leave whilst on maternity leave and if the maternity leave bridges a ‘leave year’ most employment lawyers agree that this leave will automatically be carried over into the next leave year. After maternity leave you have the right to return to your job after 52 weeks. And subject to what your contract says (which I have not seen) your employer can require you to take holiday at certain times, but they must give you prior notice that they want you to do this. From what you say this procedure has not been followed. In practice many women returning from maternity leave choose and/or are encouraged by their employers to take their accrued holiday before returning to work. However, your employer’s conduct at best is misleading. Arguably the period from August to November was paid time off work granted by your employer at their discretion, and you still retain any annual leave you had before you started your maternity leave and annual leave accrued whilst you were on maternity leave. If the leave year is coming to an end I suggest you request to take this annual leave in the normal way.
2. Flexible Working
From your email I gather that your employer agreed to you returning to work three days, and that you relied on this agreement and booked three days of childcare. Now you are being told by your employer to come into work on five days a week? This looks like an imposed change by your employer, but I need more information about how and when your three days a week work pattern was agreed and exactly what has happened since. It may be that the above is discrimination because of your maternity leave and/or your childcare commitments. However, I would urge caution regarding next steps. What action you take will depend on the background to your case, what you want, your job and who your employer is etc. I suggest you write up a ‘time line’ of what has occurred to date and that you keep a record of any future events that occur at work. Do not keep this record at work.
Vanessa Wheeler is a solicitor at Setfords Solicitors. Please contact her for legal advice on business and commercial law, including franchise and contractual matters. She can also assist with employment matters.
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From reading this I am led to believe that while I have been off work on maternity leave I have still accrued holiday pay - is this correct?
Editor: While you are on maternity leave you still normally accrue holiday entitlement if you are on a permanent contract.
Anonymous | Report this comment
I am on maternity leave at present. My maternity leave finishes on the 13th April 2012., but I was told by my manager on several occasions that I could add my full holiday entitlement for 2011 on the end of my maternity leave which is 27 days plus 9 bank holidays.
I went into work today to hand in a letter stating I will be returning to work after I have taken my holidays, which would mean I was due back on the 4th June. However, I was informed by the finance department that they had spoken to head office & they had informed them that I was not entitled to my full holiday entitlement because it went over into the next financial year & their policy is that you can only carry over five days. They said that I should have taken my holidays before my maternity leave. However, this was impossible to do as I had a change of contract on the 2nd April 2011 so I wasn't entitled to holidays before the 2nd April.
Surely they are not allowed to do this, especially since my manager told me on a number of occasions that I could take them at the end of my maternity. I am totally stressed out over the situation & do know what to do. I have only booked my little one's place in nursery starting from 4th June, so don't have childcare arrangements before then.
Editor's note: to get expert advice on this you need to post to our expert panel on the Advice and Support page. The following may help - http://www.workingmums.co.uk/advice-and-support/q-and-a/439556/holiday-entitlement-and-maternity-leave-ask-the-expert.thtml
Anonymous | Report this comment
I returned to work under a new contract of flexible working . I was not paid and did not take any accured holiday while on maternity when i came back under my new contract. Is it that lost my holidays because I returned to work under a new contract ?
Editor's note: Questions for our experts should be posted via our Advice & Support page and you should be logged in to do so. This means we can contact you direct if we need follow-up information. as in this case.
Anonymous | Report this comment