Carrying over holiday when on maternity leave: your rights

I am entitled to 33 days leave per year running from January to December. I am due to give birth in mid-2022 and will be off for a year. I have asked if I can add my holiday to the end of my leave so I don’t have to take all 33 days before my baby is born. We have a standard policy that we have to take at least half of leave within the first six months of the year and also take no more than half of your entitlement before this period, it also means I would only be able to take a maximum of 16.5 days holiday before the due date. My manager was sure that I would not be able to carry over the other half of my 33 days until 2023.  In our staff handbook the maternity policy states that holiday entitlement continues to accrue during maternity leave and holiday can be taken before or after your leave “as long as it is still within the current leave year”. This seems unfair. Moreover, the Citizens Advice site says you can carry over 5.6 weeks and the gov.uk site says just eight days. What is the legal position?

Maternity Leave

 

Annual leave and maternity leave can be a complex topic, particularly where the maternity leave spans across two leave years.

Firstly, you are correct that you continue to accrue annual leave whilst on maternity leave. This includes the statutory entitlement to 28 days’ annual leave (or 5.6 weeks), and your extra additional contractual entitlement.

Annual leave cannot be taken during maternity leave and therefore your employer must allow you to take your full holiday entitlement outside of the maternity leave period. This can either be before your maternity leave or afterwards.

Just to help explain why the information you found online differed, the Citizens Advice website relates specifically to what you can carry over whilst on maternity leave and confirms that if you can’t take all your holiday before your maternity leave starts, your employer has to allow you to carry it over to the next leave year. The gov.uk website relates to normal holiday, not specifically holiday for those on maternity leave, so these comments don’t apply to your situation.

Your employer’s policy for normal annual leave (ie you must take half the leave in each half of the year) and their policy for annual leave during maternity leave (ie take it before you go, but you can carry it over to the end of maternity leave if you come back in the same holiday year) conflict. As your employer has a specific clause in their staff handbook about holiday during maternity pay it is likely that they mean for those arrangements to supersede their normal holiday policies.

I think what they are trying to say in their maternity holiday pay policy is not that you would forfeit any of your holiday entitlement, but that they want you to take holiday for each leave year in the year that you accrue it. This is a common approach for employers to ensure that employees don’t end up with excessive holiday to take on return from maternity leave. To do this, they will ask the employee to take a chunk of holiday before they go on leave which relates to the first holiday year (the leave accrued during May – December 2022 in your case) and they then let you take the holiday accrued from the new holiday year (January – May 2023 in your case) when you return.

Based on their policies they could take two approaches:

  • Require you to take up to half your full annual entitlement before you go (16.5 days), and leave the rest for you to take when you return (their normal policy). You would then also accrue further holiday as normal during your maternity leave and would need to take this all on your return from maternity leave
  • Require you to take all holiday from 2022 before you go and then leave you to take the holiday accrued in 2023 when you return (their maternity policy). You would have to take the full 33 days annual leave for the 2022 year prior to May 2022 and then you’d have to take the remaining holiday you accrued during maternity leave for the 2023 year when you return.

Both of these are valid approaches taken by employers and it would be difficult to challenge either approach from a legal perspective. I suspect they are more likely to want to use option 2 than option 1, though, as this is their maternity policy.

Whatever approach they decide to take, they cannot take the holiday away from you. They will need to work with you to agree when it will be taken. If they ask you to take all of your annual leave for 2022 before you go on maternity leave, but you think there are good reasons why you shouldn’t do this (for example, work projects, providing cover for colleagues or needing to be available for a particular event) we’d recommend you explained this to them to try and persuade them to let you carry all or part of it over instead. You could explain how you plan to use the leave when you come back to help with this. For example, some people choose to take it as a chunk at the end to get some extra income for the last few weeks of leave. Other people choose to use it spread out over a few weeks so they can have a phased return back to work instead of going straight back to your normal hours.

We would always recommend that if you have a preference about when you take it that you put this forward as a proposal for them to respond to. This makes it as easy as possible for them to deal with the paperwork and to approve the request.

*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton.



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