If there hasn’t been a clear break in continuity of service of a week which includes two...read more
Our office is closed during the Christmas break during with the team are paid as normal and these days are treated as an office closure on top of holiday entitlement so it is an additional perk. In our policies we don’t call the three days annual leave instead calling it an office closure so we have our annual leave entitlement plus 3 days office closure. We have a team member on maternity leave over this period and they are treating the office closure days as annual leave, adding the 3 days office closure to their leave entitlement, to be taken before returning to work. As the office closure isn’t part of our annual leave entitlement I feel this is incorrect. Should they be allowed to carry over these 3 days or not?
Although not referred to as a contractual entitlement in the employment contract or treated internally as annual leave, I understand from your query that your employer has historically always given all employees three days off at Christmas as paid leave and that employees know of and expect to receive this period of paid leave. As a result of that custom and practice, an implied contractual entitlement appears to have arisen to that paid leave. If there is an implied contractual entitlement to this time off, then this entitlement will apply to all employees who are employed at the time, regardless of whether they are at work or on maternity leave.
If however, the three days off are discretionary and are not always given (for example, due to commercial needs or only to specific teams on an ad hoc basis) then it is arguable that there is no implied contractual entitlement by way of custom and practice.
When an employee is on maternity leave, they are entitled to all their usual contractual terms as if they were not absent. The exception to this are terms relating to remuneration. Maternity leave is for recovery from the birth and to protect their special relationship with the child whereas holiday or the Christmas closure paid leave period is for a different purpose, namely rest and recovery. It is not possible to have both paid leave at the same time as maternity leave.
In this case and on the presumption that an implied contractual entitlement exists to the Christmas closure paid leave, your colleague on maternity leave will be entitled to the three days paid leave off for the Christmas closure as well as their normal annual leave entitlement. Your colleague would be entitled to take that leave entitlement at a later date. Failure to permit this would mean the employee on maternity leave is being treated differently to everyone else and that is likely to constitute discrimination on grounds of maternity in addition to breaching her contractual entitlement.
*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.