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My husband is currently on enhanced paternity leave and his manager has refused to carry over or pay the bank holidays missed whist on paternity leave. We are not certain of the contractual situation because it is extremely difficult for him to access any terms and conditions information from his employer. However in the 20+ years he has worked for the company he has been paid for bank holidays and has the day off. If his day off falls on a bank holiday he is given time off in lieu. The company policy states “Any bank, public holiday which fall whilst the employee is on additional paternity leave will not be paid or credited to their annual holiday entitlement on their return to work.” He has also asked that his remaining holiday entitlement for 2013/14 is taken immediately on his return to work. His manager has refused this, telling him he cannot take it off immediately on return (despite him giving 3 months notice and discussing childcare reasons for doing this). His manager is also arguing that he asked my husband to take the holidays at the beginning of the paternity leave, which he did not. His employer’s policy states “The employee cannot take annual holiday during their additional paternity leave, but may take holiday immediately before or after this period.” However, he has been told that there is supplementary management guidance which says this is at his discretion. The employee policy does not mention this. There is no HR contact to deal with the matter, the local TU are having difficulty challenging these points and he has concerns with escalating the matter above the line manager. Where does he stand and how should he go about getting a resolution?
An employee cannot take holiday and be on paternity leave at the same time. Therefore holiday must be taken before the start of or at the end of the paternity leave. During paternity leave all holidays continue to accrue as normal. If your husband is contractually entitled to 20 days plus 8 bank holidays per annum, then this entitlement is not changed by being on paternity leave. He will still be entitled to 20 days plus 8 bank holidays. This legal entitlement cannot be changed by the company policy which tries to remove the entitlement to bank holidays. As a starting point you therefore need to check how many holidays your husband is entitled to under his contract of employment. By law he is entitled to a minimum of 28 days per annum (including bank holidays), but he may be entitled to more under his contract. If there is no written contract then you need to look at how many holidays your husband has always taken year after year. This would be his contractual entitlement due to ‘custom and practice’. The employer cannot take these holidays away from your husband simply because he is on paternity leave. Of course, if there is no contractual entitlement to bank holidays then your husband cannot insist on taking them in lieu (or be paid for them) at the end of the paternity leave.
I would advise your husband to submit a grievance in accordance with his employer’s grievance procedure, challenging his employer’s refusal to allow him to take the bank holidays at the end of paternity leave. You should, however, note that if the paternity leave ends after the end of the holiday year, his employer may argue that he loses all holidays if there is no right to carry holiday forward to the next holiday year. Where family leave is involved, the law on carry forward of holidays to the next holiday year is unclear. With maternity leave it appears that you are permitted to carry forward your statutory entitlement i.e. 5.6 weeks, but it is not clear whether this also applies to paternity leave. You therefore need to check when the holiday year ends and try to ensure that holiday is taken before the end of the holiday year.
In relation to your second point, how and when you are entitled to take annual leave will depend on your husband’s contract of employment and policy documentation. I understand that the relevant policy states that he may take holiday immediately before or after his paternity leave, but that his employer has stated that there is supplementary management guidance which says that this is at his manager’s discretion. The employer must exercise its discretion in a way that is not perverse or irrational. Essentially if the employer does not agree to the annual leave but has exercised its discretion properly in coming to this decision, then there is little your husband can do to challenge the employer’s decision. Your husband would need to point out that he should take the holiday before the end of the holiday year. If he takes annual leave without consent, this is likely to be treated as unauthorised leave and his employer is likely to commence disciplinary proceedings against him.
Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.