Maternity leave and accrued holiday - advice please

[busymum]

my employer is refusing to let me add my accrued annual leave to the end of my maternity leave, they are also refusing to pay me for it (worked holiday) is this legal? I'd love some advice

[dairymilkfiend]

I'm not a legal expert, but on the 3 times I have returned from maternity leave, I have always taken my annual leave at the end, hence had the last few weeks of my time off as paid annual leave. As you accrue annual leave during maternity leave ( I think only the paid part) they have to let you take it!

[tallgirl]

Like dairymilkfiend, when I returned to work following maternity leave, my accrued annual leave was tagged on to the end of my maternity leave- this amounted to 6 weeks of extra leave. How it worked out though, I think I offically had returned to work, but was on annual leave (ie no maternity benefits during this bit).

[Vik]

This should be helpful:

http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyandmaternityrights/DG_175088

I work for the NHS and added my annual leave onto the end of my mat leave too!

[njc97]

Are they refusing to give you the holiday you have accrued during ML at all? If so, that's illegal. They could try to make you come back to work and then take the holiday spread over the rest of the year, but I can't see how that's helpful to them.

[Belle]

you could try ringing ACAS - the employee advisory service - I did this when I resigned as wanted to check what would happen re accrued leave; they confirmed I'd have to be paid it which I informed my employers of - they duly paid it. Still found what the allowance is meant to be confusing (bank holidays etc).

[Mrs TP]

Your say your employer is refusing this but do not state who exactly at the organisation. If it is your boss then complain to their boss or the HR/personnel dept if there is one. If you don't get anywhere then file a formal grievance to the same people. There should be someone in your organisation who can advise you of how this is done. Don't be afraid of fighting for your rights. Your are not an inconvenience and are legally entitled to this leave. As a working parent it is not always about the money (although I guess that is why we work) but there are occasions when time off when you want it can be more valuable.

I had 28 days leave holiday and bank holidays accrued during mat leave owing and was due back to work 12 Dec 09. I wanted to use some of the leave to take me through to 11 Jan 2010. This was agreed but it still left me with a chunk of accrued leave to use later in 2010. Our HR dept told me I had to return from mat leave earlier than 12 Dec to use up more accrued leave in 2009, as I was only allowed to carry 5 days over into 2010. I complained that this meant entitlement to 52 wks mat leave plus accrued leave was not being evenly rolled out and was dependent upon the time of year your baby was born. The HR person wouldn't budge and so I complained to the most senior director in my dept who sorted it out.

You soon become to realise that your colleagues are not always clued up on the specifics of mat leave and parental rights do check out the site recommended by Vik above - it presents the facts v. clearly.

Good luck

Mrs TP

[chantelle]

i hadn't even thought of tacking it on the end but my employer was happy to let me use some of the days as holiday later in the year and paid me for the rest.

[busymum]

hello and thank you very much for all the advice.

This is my 2nd baby, I had no problems agreeing my return to work previously, I was allowed to take accrued holiday at the end but have since had a change in line management and I have had a lot of problems over recent months.

My 2nd baby was born in April 09 and I hadn't used any of my holiday from this financial year prior to going on ML. I received a very standard letter from H.R before I left with details of KIT days etc but no mention of accrued holiday or indeed any other benefits, rights or entitlements. I left assumed I would get the same support as before when I chose to return work.

I am due back 16th March 2010 (1 year off) but was refused my full accrued leave entitlement because it would have gone into next financial year (Company policy, you're only allowed to carry over 5 days, I've looked into this and it might be a bit of a loop hole in maternity law) so I told them I would end my ML early enough to add the holiday on at the end but keep within this financial year, still arriving back on or around the 16th March. (similar scenario to Mrs TP)

My employers case rests on 1. An argument that the department will be short staffed at the end of the financial year and 2. An overspend in the department staff budget because 2 of us are on maternity leave. They claim that all staff leave is discretionary and cannot be given if it means the department cannot deliver. They won't extend staff contracts (the person covering my maternity leave will still be working in the Department) or employ temps, because of the budget overspend, and they will not pay worked holiday either (This is the bit I think may be unlawful). Their case also seems flawed because I am allowed by law to have 12 months maternity leave regardless of accrued holiday so a return date of 16th March 2010 has always been the date we have been working to.

I work for a public sector organisation and this has come from a very senior level, I can't help thinking they have done their home work. I am a member of the Union though and will be following this up and I have since heard that there are places you can contact to get free legal advice if you have problems going back to work?

Perhaps they are just trying to call my bluff, perhaps they just want me to ask them for less holiday and make do with a compromise, but at the end of the day this is a months salary and can anyone with 2 kids afford to give up a months salary! it's just not right

I just wondered if anyone else had had experienced anything similar, and won?

All advice much appreciated

[Fuschia]

I can see advice to employers that there is no right to carry leave forward (though if this has been allowed before you could argue it is custom and practice)

However, I don't see that they can refuse you the right to end your maternity leave early and then take the accrued leave, returning on 16th March.

Hope the union can help you sort it out with them

http://www.acas.co.uk/CHttpHandler.ashx?id=955&p=0

"8 HOLIDAYS AND HOLIDAY PAY

As long as a contract exists between the employer and the worker, the

statutory minimum entitlement to paid holiday will continue to accrue during

periods of absence, such as ordinary and additional maternity leave.

However, if a worker does not exercise their right to take annual leave within

a leave year, then their statutory entitlement to paid holiday will be lost as

they are not allowed to carry this over to the next leave year. For example if

a person is on sick leave for the whole of a leave year there is no statutory

entitlement to annual leave for that year. This is a complex area and if you

are in any doubt you should seek legal advice."

..

"What can a worker

do if holiday entitlement is denied?

Workers denied statutory entitlements to paid annual leave should seek

to settle disputes with their employer by talking through the problem. If

the problem cannot be resolved informally, the worker should follow the

organisation?s grievance procedure.

If it is not possible to reach an agreement in this way, workers may submit a

complaint to an employment tribunal within three months of the refusal. If the

complaint is upheld, the tribunal may award compensation to be paid to the

worker by the employer.

The Acas Code of Practice Disciplinary and grievance procedures sets out

principles for handling disciplinary and grievance situations in the workplace.

Employment tribunals are legally required to take the Code into account

when considering relevant cases. Tribunals will also be able to adjust

any compensatory awards made in these cases by up to 25 per cent for

unreasonable failure to comply with any provision of the Code."

[Fuschia]

http://www.desktoplawyer.co.uk/dtl/index.cfm?event=base:article&node=A76056BD76788

"Annual leave

You will continue to accrue your statutory annual leave entitlement of 5.6 weeks throughout both ordinary maternity leave (OML) and additional maternity leave (AML), as well as any contractual entitlement that you may have.

You cannot not take your annual leave during your maternity leave - your employer should allow you to take this leave before and/or after your maternity leave.

What happens if your employer's holiday year ends while you are still on maternity leave and you have unused holiday entitlement?

Under UK law there are limitations on carrying over unused holiday entitlement from one holiday year to the next. You cannot carry over any unused statutory holiday entitlement at all unless your employment contract or a collective agreement so provides and then only up to a maximum of 1.6 weeks. You cannot carry over any additional unused contractual holiday entitlement unless you have a contractual right to do so. However, these restrictions are at odds with the view of the European Court of Justice. Therefore it is suggested good practice for employers to allow their employees to take any unused holiday entitlement on their return from maternity leave.

Note, however, that your employer cannot pay you in lieu of any untaken statutory annual leave unless your contract is terminated.

"

[Fuschia]

http://www.maceandjones.co.uk/news/archive/holidays-in-the-spotlight.html

"Maternity leave and carrying over holiday

Maternity leave will frequently span two leave years. According to the WTR, women on maternity leave may lose some of their holiday entitlement if their leave extends into a new leave year, as the WTR do not permit statutory leave to be carried over into the next leave year.

Consequently, employers may justifiably insist that such leave is lost to the extent that it cannot be taken during the leave year in which it accrued. However, this issue remains unclear and we will need to await future case law.

Given the potentially large amounts of holiday at stake you could encourage the worker to use up her holiday entitlement immediately before going on maternity leave or on her return from maternity leave.

If the worker still does not use up her holiday before the year ends, you may wish to apply your normal rules on carrying forward holiday entitlement, even if this results in the employee losing some holiday. The "safer" approach would be to allow carry over of all outstanding but untaken leave.

"

[The Nappy Lady]

Not helpful in this specific case but back when I worked in the city they were really good about making sure you used up any holiday you would stand to accrue whilst off at the start of you maternity leave if you were going to be off across 2 'years' (hope that makes sense).

If you are pregnant it is worth bearing this in mind, use holiday first basically.

Molly

[Mellors]

I agree with Molly. Because I can't carry leave over at all in my firm both times I have been off for a year I have had to use the current year's leave at the beginning (thus pushing back the date I officially started Maternity Leave), and use any accrued during the second annual leave year at the end (or as normal holidays during that year).

[Mrs TP]

I just found this link too:

http://www.personneltoday.com/articles/2009/03/31/48820/how-to-deal-with-the-holiday-entitlement-of-an-employee-taking-maternity.html

Basically says law unclear re contrasting policies of usual carrying leave over and maternity rights but good practice to act favourably towards employer.

Also comments on pay and leave.

Good luck

Mrs TP

[njc97]

You should speak to CAB or similar, see contact details below

http://www.southwarkcabservice.org.uk/contact.html

Your employer can refuse to let you take holiday at a certain date. And they can also not let you roll holiday over if you're on maternity leave over the holiday year end. BUT it's difficult to see how they can refuse to let you take holiday if you return on 16 March (ie the same date you were always expecting to come back) and it's also difficult for them to refuse to let you either carry it over or take it prior to year end. In any case, budget/cost cannot be a reason for refusing anything.

Also, don't rely on it being a large public sector organisation or senior people meaning their position is correct. My wife works for a very large employer, in the head office HR team. Her maternity leave details were sorted out by the same people who set policies for the company that employs 1000s of people. Needless to say they got it wrong. I previously worked at an HR consultancy - they used to get things wrong on maternity leave for their staff.

[busymum]

thanks for all the links (desktoplawyer, personneltoday etc etc) really really helpful. I haven't really got much further but the union know what's going on now

[Vangough]

Can I ask a question here !? I go on maternity leave very soon (next week) and don't intend to return (they don't know that yet though) when I 'resign' officially (at either 9 or 12 months, not sure yet) do I then get paid the annual leave I will have accrued??

[Belle]

Yes you do - but you might have to tell them that, depending on how much experience they have in dealing with maternity leave etc.