Complications from carrying over holidays from maternity leave

I had a year off for maternity and accrued holiday on top of this years allowance. My company policy says that accrued holiday should be used as soon as possible, and that we’re entitled to 12 weeks flexible working. At first my manager was pressuring me to use the accrued holiday before my year was up, but eventually it was agreed I could carry it over and use the holiday to have a shorter week.  I’ve therefore organised my childcare accordingly and am thinking of possibly going part time from September.  My manager is now saying they only agreed to this for 12 weeks. I think she will try to to pressure me into a formal part-time arrangement.  What can I do?

Annual Leave

 

Employees on maternity leave are entitled to all their normal contractual terms and benefits other than remuneration, and this includes the accrual of holiday leave. Holiday cannot be taken at the same time as maternity leave, as maternity leave is for the specific purpose of recovering from childbirth and to protect the special relationship between the mother and their baby in the period after childbirth.

There is no legal timeframe in which the accrued holiday must be taken after the maternity leave ends so this means that it is down to employers to set their own policies or to agree arrangements with the employee in question. Typically, employers encourage their employees to take their holiday entitlement either before or immediately after the maternity leave period, or within a specified timeframe after the maternity leave ends. Employers are permitted legally to require employees to take holiday entitlement on specific dates provided they give sufficient notice of that requirement.

In your case, the policy sets a clear timeframe in which accrued holiday must be used and it appears that the maternity policy is silent on this, which means that the starting point for you and your employer is the 12-week timeframe. However, your manager knew the dates on which you proposed taking accrued holiday, which presumably reflected the dates you have set out, and they agreed to that proposal. Their agreement contradicts the policy and it was not unreasonable for you to presume that their agreement superceded the policy. Arguably, your manager’s agreement is a binding contractual promise by the company and upon which you have relied.

I recommend that you check the terms of the policies, check the correspondence with your manager and consider whether others have been permitted to take accrued holiday over longer timeframes after maternity leave. Where there is a custom and practice to permit a longer timeframe, this could constitute an implied contractual term.

When speaking with your manager, remind them that they had full sight of the proposed dates and arrangement, and they agreed to that proposal which you have relied upon and therefore there is a binding contractual promise in place and if they don’t adhere to it, they will be in breach of contract. If applicable, remind them that the maternity policy provides a longer timeframe in which to take accrued holiday, that the holiday policy is not contractually binding and that it is custom and practice to provide a longer timeframe in these circumstances. Explain that you have relied upon their confirmation that your proposal was agreed and ask that they adhere to it.

If you have copies of emails or messages between you setting out the proposal and their agreement to it, take these with you and be ready to provide them to the manager and HR team. If your manager is unwilling to adhere to the arrangement, you could raise a formal grievance.

Whilst your manager may ask you to consider moving to a part-time position, they cannot require this. I recommend you ask them to explain why they are proposing this and then take time to consider the proposal. You mentioned that you intended to either return full time or part time in September 2023, so their proposal may work with that. Any change to your contractual terms, including hours, should be agreed with you.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon. 



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