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I am currently on maternity leave on the unpaid part since 14 March. I received confirmation from my employers that my voluntary redudancy application had been approved and was given 3 months notice from 8 March. I have asked if I can have accrued holiday pay in respect of unused holiday entitlement, but have been advised that I have to use up any holiday entitlement during my notice period as it will not be paid. My maternity leave ends on 14 June and my intention had been to use my accrued holiday leave from that point before returning to work. However, as I am now taking voluntary redundancy it is unclear how I am expected to use my holiday leave if in theory I am not returning to work. In addition I asked if I can receive payment in lieu of notice. However, I have been advised that the expectation is I will work by notice. I am confused by this as technically I will not physically return to work as my maternity leave ends after the notice period given. Are you able to advise?
You have indicated that you have been given notice as of 8 March 2010 and your unpaid part of maternity leave started on 14 March 2010. Your notice will therefore end of 8 June with your official return date from maternity leave being 14 June 2010.
I am not surprised that you are confused about the position that they are taking on holiday. Unfortunately legally the position on accrued holiday whilst on maternity leave is uncertain, but the preferred view is that you should be allowed to take your accrued holiday on your return. This is all very well, since you rightly acknowledge that you will not be returning before the end of your notice period and they are simply suggesting you taking holiday whilst still on maternity leave which is not actually possible.
Of course the easiest solution for you would be to be paid in lieu of notice now as well as receiving pay for accrued but untaken holiday pay but I understand that this has already been refused. Also, it may be that the “pay in lieu” would end up not being pay at all since you are in the unpaid part of your maternity leave. This is probably why they want you to take your holiday in this period – because they hope that this would be unpaid as well. However, this is not permissible, since statutory holiday should be paid.
Instead, therefore, I suggest a practical solution to the problem. I propose that you say now that since they are not willing to pay you in lieu and you cannot technically take your holiday during your maternity leave, you would like to come back from maternity leave early. You should give the appropriate eight weeks notice that you are returning early and that when you return you would like to be put on garden leave for the remainder of your notice. This might at least mean that you are paid for one month minimum of your notice period since I am presuming that they are currently saying that you will be unpaid. You could ask for holiday pay to be on top, but worst case at least if they refuse to put you on garden leave, you can simply say that you will take your accrued holiday and be paid for it!
I hope that this offers you a practical solution to what is a very tricky problem.