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I have been working for a company for three years on a zero-hour contract. I am an employee. My maternity leave just ended and I got SMP from my employer. Before I go back to work I would like to use my holiday entitlement for the year. My employer said that I do not qualify for paid holiday. Is it correct? I was working regular shifts for two years and then my hours were reduced during my pregnancy. My contract says that my holiday entitlement is calculated as 12.03% of every hour I worked.
I presume that you have been paid statutory maternity pay and your employer has confirmed you were on maternity leave for a year. Case law is quite clear that you cannot take holiday and be on maternity leave at the same time and so you will accrue holiday for the whole year.
There is no binding case law or commentary that I can find regarding this type of situation, but my view is that your employer has, by paying you statutory maternity pay and stating you have been on maternity leave for a year, accepted that you are its employee and have had continuous service for 26 weeks leading up to your maternity leave. This means that you accrued holiday during the maternity leave period.
As you have accrued this holiday, your entitlement is to take that holiday – there is no right to receive a payment for that accrued holiday (that only happens when you leave employment) but employers will sometimes agree to pay it to you or allow you take your holiday before starting back after maternity leave.
Your holiday entitlement would be based on the entitlement for the entire year. As your working hours (and therefore holiday entitlement) varied from year to year, your employer would need to calculate your holiday entitlement for the maternity leave period based on the previous 12 months’ service.
What you are paid when you take this holiday is calculated on the basis of your average weekly remuneration (including commissions and bonuses) over the previous 12 complete weeks. Weeks where you did not get paid are not included in the calculation. So for example, the company would need to calculate it based on the pay you received for each of the 12 weeks worked before maternity leave started.
In terms of next steps, you should check your contract and ask your employer to review their position. If the company does not engage constructively with you, you could raise a formal grievance regarding the situation. If the grievance is unsuccessful, then you could consider bringing an employment tribunal claim against the business.
Finally, I recommend you also ask the employer to check the holiday entitlement calculation of 12.03% per hour. Zero hour contract employees are entitled to the equivalent of 5.6 weeks holiday per year which is normally calculated at 12.07% per hour. As a zero hour contract employee, you are treated as a part time employee and if you are being treated less favourably to a comparable full time employee in respect of your holiday pay calculations and payments, then this would be unlawful.