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I’m entitled to 25 days holiday a year (January-December) plus bank holidays. I will start my maternity leave in May. I’ve already booked off 10 days to take in March and April and asked if I can take another five days before my maternity leave officially starts, which my employer has agreed to. I asked my employer about how I should take my remaining holiday entitlement while on maternity leave and they’ve advised that they will pay me for the 10 days I haven’t taken at the end of the holiday year, so in December. They do not want any to roll over as they’re concerned I’d start back with 35 days, but I was planning on using the 10 days directly before I properly return to work. So I’d return with 25 days. I’m happy with their suggestion of a December payout as an alternative, but everything I’ve read suggests you either have to take holiday before you go or roll it into the next holiday year and take it at the end of your leave. So can they pay me for the days in December when I do not plan to return to work until a few months after that? I’m also concerned receiving this payment in December will affect my SMP. I should also be due a bonus in December, last year this was £5k. Would the bonus affect my SMP? There has also been no mention of bank holidays, I’ll miss four this holiday year – should I be paid for these too?
In your question you raise a number of issues regarding remuneration and the accrual of holidays during maternity leave. I have subsequently divided the answer in to a number of sub-headings to deal with each point in turn.
Is carry-over of statutory annual leave required?
In your question you state that you are entitled to 25 days holiday per year plus bank holidays. I further note that your holiday year begins from the 1st of January and your employer has stated that they will pay you for the 10 days you wont be able to take before going on maternity leave in May 2017.
Generally speaking, your contractual terms (except those relating to remuneration) continue during maternity leave. The right to accrued annual leave is not classed as “remuneration” within the meaning set out in the Maternity and Parental Leave etc. Regulations 1999 (MPL Regulations). Therefore you continue to accrue your statutory paid annual leave entitlement under regulations 13 and 13A of the Working Time Regulations 1998 (WTR 1998), currently 5.6 weeks.
Annual leave cannot be taken during maternity leave and your employer must therefore allow you to take your holiday entitlement outside of the leave period. However, your period of maternity leave will span two leave years and it is not always possible to use up the current year’s annual leave entitlement before starting your leave. The European Court of Justice (ECJ) has ruled that that the combined effect of the Working Time Directive (WTD), Pregnant Workers Directive (PWD) and Equal Treatment Directive (ETD) is that member states of the EU must ensure that employees can take their statutory annual leave at a time other than their maternity leave. The ECJ has held that this applies not only to the four weeks’ leave guaranteed by the WTD, but to any greater statutory leave entitlement under national law (Merino Gomez v Continental Industrias del Caucho SA).
Although the case of Merino Gomez did not mention the need to carry forward leave (as the question did not arise in that case), subsequent case-law on the interplay between sick leave and holiday has made it clear that accrued annual leave may need to be carried over if it cannot be taken in the year in which it accrues because of sick leave. By extension, this principle would apply to maternity leave. Although on its face the WTR 1998 do not permit carry over of the leave, the Court of Appeal has ruled that words can be read in to give effect to EU law in this regard.
Is carry-over of contractual annual leave required?
There is no explicit mention in Merino Gomez of the position of contractual holiday in excess of the national statutory minimum, and there is no other ruling on this point. Many employers who offer contractual holiday in excess of the statutory minimum allow women on maternity leave to carry the unused balance of their full contractual entitlement over as a matter of practice. Their reasons for doing so may be a mixture of caution due to the lack of clarity in the law and a desire to be seen as a family-friendly employer. However, it is strongly arguable that this is not strictly required on the current state of the case-law.
There is still no statutory right to time off (paid or otherwise) on any of the 6 bank holidays and additional 2 public holidays annually (collectively “public holidays”). Whether a worker is required to work on a public holiday is a matter for their contract or, in some cases, simply the employer’s managerial prerogative. The legal position is complex and I would suggest that you take further specific advice on this point.
Sums payable to you by way of salary are not payable during maternity leave. However, you are still usually entitled to be paid for any bonus which is awarded by your employer whilst you are on maternity leave irrespective of your Statutory Maternity Pay, depending on the criteria for payment. A failure by your employer to pay the bonus, or the amount of bonus paid, may (depending on the circumstances) give rise to an equal pay claim, or a claim for discrimination.
In light of the above, if you feel that your employer is not complying with its duties then I would suggest that you raise the matter informally with them. If this does not resolve the problem then I would advise that you raise a formal grievance about the way they are handling your situation. If this does not then conclude matters to your satisfaction then I would recommend that you seek further independent legal advice to discuss your options.
Please note that any discrimination or equal pay claim needs to be submitted within three months of the incident. You would also need to go through the Acas pre-conciliation procedures before the claim would be accepted.
Should you require any further guidance on any of the issues listed above then please contact Tracey Guest of Slater Heelis LLP on 0161 672 1246.
*Helen Frankland assisted in answering this question.