I am about to go on maternity leave and my employer is saying that the days the office is usually closed over Christmas [four days] will be deducted from my holiday entitlement that I will accrue
over maternity leave, even though I won’t be there. Is that allowed?
I have assumed for the purposes of this advice that you will be on maternity leave at the time that the office closure takes place. However, I am unclear about whether or not you receive the statutory minimum 5.6 weeks leave or more than that under your contract, how much of that leave you have already taken and when your annual leave year runs to and from.
The starting point is that you continue to accrue annual leave during your maternity leave in the same way as if you were in work.
The courts have made very clear that the purposes of maternity leave and holiday leave are distinct and they are entirely separate things. This means that maternity leave and annual leave cannot overlap and you cannot be on maternity leave and annual leave at the same time.
Maternity leave is intended to protect the mother’s biological condition during and after pregnancy, and to protect the special relationship between the mother and her child following childbirth. In contrast, annual leave is intended to provide rest and relaxation.
In this case, your maternity leave is coinciding with an office closure. Your employer cannot designate the days on which the office is closed as being both holiday and maternity leave. If they were to do this and treat the four days as holiday, your employer would not be meeting its legal duty to provide you with annual leave and it could also have the inadvertent result of ending your maternity early, which presumably is not anyone’s intention.
The next question is whether or not your employer can deduct four days annual leave from your entitlement while you are on maternity leave. If you will still have time in your annual leave year to take leave when you return, then you should not have the leave deducted because you cannot be on annual leave and maternity leave at the same time and you should not be treated less favourably because you are on maternity leave by having a deduction. If your annual leave year is due to end before you return from maternity leave, then your employer should be allowing you to carry forward at least your statutory annual leave entitlement of 5.6 weeks and to allow you to take that annual leave after your maternity leave ends.
It sounds like your employer may have misunderstood the situation and not taken legal or HR advice. I suggest you speak to your employer, explain your position and ask them to get proper advice and clarify why they say they can make the deduction. If it is not possible to resolve the situation, it may be necessary to raise a grievance or take further legal advice about protecting your rights.