Can bank holidays be carried over during maternity leave?

You ask whether an employee on maternity leave is entitled to carry over her entire contractual entitlement of 35 days plus bank holidays. Her employers are only allowing carry over of 35 days. We have not had sight of the contract of employment or other relevant documentation in this specific case and therefore can only advise on the current legislation and case law on the issue generally.

A woman’s contractual terms (except those relating to remuneration) continue during maternity leave. The right to accrue annual leave cannot be described as “remuneration”. Therefore, women on maternity leave continue to accrue their statutory paid annual leave entitlement under regulations 13 and 13A of the Working Time Regulations 1998 , currently 5.6 weeks (28 days for full time employees), and any contractual entitlement they may have in excess of this, during maternity leave. Any attempt to limit contractual holiday accrual during maternity leave would be discriminatory and therefore void. Annual leave cannot be taken during maternity leave and the employer must therefore allow the employee to take her full holiday entitlement outside her maternity leave period.

The ECJ has ruled that member states must ensure that employees can take their statutory annual leave at a time other than their maternity leave. The court held that this applies not only to the four weeks’ leave guaranteed by the WTD, but to any greater statutory leave entitlement under national law. (Merino Gomez v Continental Industrias del Caucho SA (C342/01) [2005] ICR 1040. Namely, the 5.6 weeks (28 days) statutory leave pursuant to the Working Time Regulations 1998.

Is carry-over of contractual leave required? Merino Gomez does not explicitly mention the position of contractual holiday over the national statutory minimum, and there is no other ruling which is directly on point. Many employers who offer contractual holiday in excess of the statutory minimum allow women on maternity leave to carry the unused balance of their full contractual entitlement over as a matter of practice. Their reasons for doing so may be due to the lack of clarity in the law or perhaps a desire to be seen as family-friendly. However, it is arguable that this is not strictly required on the current state of the case law.

Employers often identify particular days or periods during which it is compulsory for workers to take paid leave, such as bank holidays, seasonal shutdowns (such as over Christmas) and school holidays (for those working in schools).This can cause those on maternity leave to fear that they are losing out on paid holiday. Many employers who only give their employees the minimum 5.6 weeks’ holiday required by the WTR 1998 include bank holidays and any other compulsory shutdown periods in that allowance. In such cases, the law is clear: time off in lieu of the compulsory holiday period must be given on return from maternity leave (or before maternity leave starts), so as to ensure the employee has the full 5.6 weeks’ holiday entitlement, and carry-over to the next holiday year may be required. There is no possibility of treating the holiday as being taken concurrently with maternity leave. However, where some or all of the shutdown period is in addition to the statutory 5.6 weeks holiday, as in this case, the law is less clear, because Merino Gomez did not deal explicitly with contractual holiday over and above the statutory minimum.

Where there is a compulsory holiday period during maternity leave, it cannot be counted towards the employee’s statutory holiday (Merino Gomez). What about holiday in excess of the statutory entitlement? Can the employee claim her holiday pay for that period despite being on maternity leave? For example, can a school teacher claim holiday pay for an entire school holiday that falls in her maternity leave? On the current state of the law the answer is no. Arguably, the same would apply to bank holidays. Under the ERA 1996, terms related to “remuneration” are suspended during maternity leave. As holiday pay is a form of remuneration, any attempt to claim holiday pay during maternity leave would therefore fail on this basis under domestic law.

It is a grey area, but on the face of it the employers are complying with their obligations in relation to holiday in excess of the statutory requirements. In order to advise on the specific circumstances of this case, a full review of the contractual documentation would need to be undertaken, in order to ascertain the contractual position.

*With thanks to Albert Mould for his assistance with this answer.

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