Adding accrued holiday after SMP finishes: ask the expert

I have confirmed with my employer that I am unable to return to work after my SMP ends. I have requested to take my accrued holiday for this year [which I have not used yet] when my SMP finishes. My employer has said that the day my SMP finishes is the day my employment ends and holiday is paid up to this date. I am unsure as I thought I would take my holiday after SMP finished. Please can you advise. Many thanks..

In short, your employer is wrong! Your employment rights are protected while you are on leave & that includes the right to return to work. So it is for you to hand your notice in & leave on the date of your choice, subject to your contractual notice period – it is not for your employer to tell you when you can resign, or to end your contract before your resignation date as that is tantamount to dismissal! So you can resign on whatever date you like, & you can either work the time in between, or use your contractual accrued holiday entitlement, or a combination of both. If your employer insists that you end your contract on the date your SMP ends, then in practical/financial terms they are denying you the amount of holiday that you would accrue between that date & the date that you would otherwise have left (since they would need to pay you in lieu of the rest of the holiday entitlement anyway.)

Don’t forget though that you are legally entitled to request a flexible working arrangement if you would like to work part time, & your employer is legally obliged to follow the statutory procedures for considering this! They can’t just tell you that it isn’t a part-time position – they need to follow due process. So one way of dealing with this situation could be for you to submit a formal request for a flexible working arrangement, return to work, & during the time it takes for them to deal with your request, work the days you want to work & take holidays for the other days in the week. If they then turn down your request on the basis that it can’t be a part-time role, they would need to give a valid business case (there is a finite list of lawfully acceptable reasons!) & you can then resign, continuing to use your holidays to work part time days during your notice period.

If they don’t stick to the statutory flexible working request procedure, then you would have a legitimate claim against them on that basis, as well as the holidays issue.

Comments [1]

  • Anonymous says:

    I would add to this advice that you cannot insist on taking holiday on particular days. It has to be agreed by your employer. The options set out above are therefore subject to your employer agreeing that you take holiday during your notice period, or intermittently whilst they consider a flexible working request. Of course, if you gave notice after your maternity leave ended, and if your employer insisted that you work your notice, then you would be entitled to be paid in lieu for any holiday that you were not able to take before your termination date. Another way (if your employer will not agree for your holiday during your notice period) would be to give notice so that it expires on the day you would have returned from maternity leave if you really don’t want to go back even for a short time. Depending on the length of your notice period, you would lose a little bit of holiday by terminating earlier, but you would have the certainty of not going back, and of having a lump sum of pay in lieu of holiday. Best of luck with whatever you decide!

    Emmajane Taylor-Moran
    Partner, Head of Employment Law, Gelbergs LLP

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