I started maternity leave at the end of last year and it is up in mid-December. I am allocated 25 days (plus bank holidays) holiday as a full-time employee. My holidays run from April to April. Upon my return how many holidays should I have accrued? My employer says they don’t calculate half months so it is only calculated from April 2016 to November 2016. I will be returning part time, 2.5 days a week. My employer says I can’t take my holidays accrued from a full time contract while I have a part-time contract and wants me to stay on a full-time contract when I return, take my holidays and then return in January as a part-time employee when they are used up as a full-time employee? The holidays were accrued as a full-time employee, but they seem to be telling me I can’t take them as a part-time employee. I wanted to tag them (or at least some) of them onto the end of my maternity leave, but I’ll be using double the holidays if I’m still full time!
I note from your question that you are currently on maternity leave. I further note that you have taken 52 weeks leave and are due to return to work in December 2016.
In answer to your first question, your contract continues throughout your maternity leave and you are entitled to benefit from the same terms and conditions of employment (except for remuneration) which would have applied as if you had not been absent. Therefore, whilst on maternity leave, you continue to accrue your statutory annual leave entitlement under the Working Time Regulations 1998 (WTR), which is currently 5.6 weeks, and any entitlement that you may have in excess of this that is listed in your contract of employment. Any attempt from your employer to state otherwise would infringe both section 71 of the Employment Rights Act 1996 and the maternity discrimination provisions of the Equality Act 2010.
I note from your question that your employer has said that they ‘don’t calculate half months’ when calculating how many holidays you have accrued. For the avoidance of doubt you should carefully check your contract of employment as this should include particulars detailing how your holiday entitlement is calculated. You should also review any maternity leave and holiday policies your employer may have to see if it details how your holiday should be accrued.
My advice is that you should also meet with your employer to explain your concerns and point them to any clause in your contract which explains how your annual leave should be calculated. If you feel that they cannot objectively justify their answers then you may wish to submit a written grievance regarding the situation. If this does not resolve matters to your satisfaction then you may look to obtain further independent legal advice regarding your specific situation.
In response to your second question, I note that you will be returning to work on a part-time basis and your employer has told you that you can’t take the holidays you have accrued on your full-time contract when you begin working part time. I further note that the employer wants you to stay on a full-time contract when you return in December 2016, take your accrued holidays and then return in January 2017 as a part-time employee.
The relationship between maternity leave and annual leave is complex and has been subject to a number of cases in both the European and domestic courts. It is established that a worker must be able to take her paid annual leave during a period other than her maternity leave. Therefore you would not be required to take any holiday until after your maternity leave period has come to an end.
Under the WTR, holiday accrues in weeks. So a week’s holiday accrued as a full-time worker but taken as a part-time worker would still be a week’s holiday. However, the European Court of Justice (ECJ) has given further clarification in the case of Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol . This case considered the holiday rights for part-time workers and those taking parental leave. The case suggests that where a worker changes from full time to part time work they ought to get their accrued holiday at the full-time rate if they were unable to take it before they went part time. Returning from maternity leave is probably a good example of when this applies. Therefore a practical solution would be to take the accrued holiday entitlement at the end of the maternity leave, prior to commencing the part-time role and I believe this is why your employer has stated this.
I would also note that Regulation 15(2) of the WTR states that an employer may give notice ordering a worker to take statutory holiday on specified dates. There may also be a clause in your contract that confirms the same. Therefore, please note that your employer can require you to take the accrued holiday before beginning your part-time role.
Should you require any further clarification on the above points then please contact Tracey Guest of Slater Heelis on 0161 672 1246.
*Adam Wightman has assisted in this answer.