13

Maternity leave and using accrued holiday

Hi everyone,

I wonder if anyone can help. I have an employee who is currently on maternity leave in her 'additional maternity leave' period. She would like to use her accrued holiday now. At my company, our policy states that holiday entitlement accrued during maternity leave must be used before the employee is due back. It cannot be used to extend the maternity leave but can be used to shorten it by using at the end of maternity leave i.e. the last 13 weeks.

My query is the employee permitted by law to take her holiday now at roughly the 27-31 week mark, and what implication would that have for her SMP? 

Thanks

Beth

  • Hi Beth,

    She cannot be on maternity leave as well as annual leave. If she wishes to take annual leave then her maternity leave ends and she is simply on annual leave.

    Like you, in my experience, some women like to take their accrued holiday once SMP has ended at the 39 week point so that they remain off with their child but don't go onto zero pay. Alternatively some women like to take it at the end of the 52 weeks period to extend their time with their child.

    If she wants to take it now she would have to end her maternity leave, would not be entitled to any further SMP and would simply be an employee who is on annual leave.

    She cant continue to receive SMP as well as holiday pay.
  • David

    | 19951 Posts

    Chartered Member

    28 Feb, 2017 16:50

    In reply to Jeny Parsons:

    Hi Beth

    The policy of insisting that accrued holidays get used up before return from ML sounds a bit odd to me. Whilst it is of course the employer's prerogative to approve or otherwise booking of annual leave, why treat women accruing holiday on ML in this different and potentially-onerous / detrimental manner? - why not keep it like any other leave entitlements both for men and for women rather than treat women differently in this regard and possibly risk unlawful discrimination claims?
  • Kim

    | 231 Posts

    Associate

    28 Feb, 2017 16:54

    Hi Beth,

    I'm inclined to agree with David on this one. What is the reasoning for not allowing women to use their holiday entitlement at the end of the 52 weeks, and where do you draw the line? i.e could they return to work physically for 1 day or1 week and then use their holiday?

    What is your policy if a male employee takes shared parental leave with regards to holiday?

    K
  • Keith

    | 9808 Posts

    Chartered Fellow

    28 Feb, 2017 16:59

    For a slightly different reason I think your policy is unenforceable and probably unlawful...(unless I am misreading what you have said)

    If the policy is "At my company, our policy states that holiday entitlement accrued during maternity leave must be used before the employee is due back. It cannot be used to extend the maternity leave but can be used to shorten it by using at the end of maternity leave "

    The issue is you are not allowing the employee to extend maternity leave (as written above) so therefore your policy as written reduced the amount of statutory maternity leave you allow employees to take (to below the statutory amount) by insisting some of it is used as holiday.

  • Hello everyone,

    Thank you for your thoughts. Very useful. I am just starting out in the field and so the thoughts provided will be very useful to talk through with my superiors. I believe our policy has been in place for several years and until the last year there hadn't been any maternity so it seems not to have come up until now.
    Thanks again
    Beth
  • Have you a selling holidays scheme she can use instead?
  • In reply to Beth:

    Beth

    I would love to hear from you about how you resolved this issue especially in light of what Keith said about it being potentially unlawful as it is shortening statutory leave entitlement.

    Vicky
  • Cheryl Collie

    | 1 Posts

    Chartered Member

    27 Mar, 2017 12:50

    I also agree with the other responses. The employee is entitled to 52 weeks, therefore should be able to take their 52 weeks. If they could take their holiday before they go, you could request that but if they go into a new holiday year where that is not possible, they therefore accrue for when they return.

    The request is then do you approve when they return? Also, if you have maternity cover in place already, surely it is easier for you as an employer to extend rather than have them return and then go on leave again.

    It feels very borderline discrimination and I would err on the side of caution.
  • Elizabeth

    | 1627 Posts

    Chartered Fellow

    27 Mar, 2017 18:38

    Hi Beth

    Are you asking what happens if the employee takes the holiday now? If so, then the answer is that once her holiday starts her maternity leave ends. She will not be able to transition back onto unpaid maternity leave after the holiday and will have to return to work. Neither will you be able to pay her any more SMP.
  • Teresa

    | 267 Posts

    Chartered Fellow

    28 Mar, 2017 09:28

    In reply to Elizabeth:

    I must admit that I'd interpreted it the same way - that the employee was wanting to take some paid holiday in the middle of her maternity leave and then continue the maternity leave.

    I think the policy saying that it has to be taken before the employee returns is fine as that means they can either take it at the end of the 52 weeks, or end their maternity leave before that point but still remain off on annual leave.

    As you say, once someone takes paid annual leave, their maternity leave ends and they cannot go back on it. If that is what the policy means when it says that it cannot be used to extend maternity leave, it is correct.
  • In reply to Teresa:

    Is there any way she could get "paid out" for annual leave during her maternity leave, without actually taking it in the usual sense?
  • In reply to Victoria Kavanagh:

    Vicky I am with you on this. I have worked with so many women who would prefer to take all or part of their accrued holiday entitlement in the form of pay during the unpaid AML period, so that they have additional cash coming into the house when it is needed most, and also they want to come back to work as anticipated at the end of the 52 weeks. I really do think the law on requiring female employees to take leave before maternity leave starts or after it finishes (i.e. after 52 weeks) is not doing women any favours when it comes to helping them re-join the workforce.
  • David

    | 19951 Posts

    Chartered Member

    6 Apr, 2017 18:40

    In reply to June Margaret Isherwood:

    Some (not I, I hasten to add) might regard the right to at least statutory minimum holiday accrual during maternity leave as a bit of legal artifice in the first place and turning it into the right to get paid it all in lieu as driving a coach and horses through the WTD / WTR that created the artifice in the first place - sort of needlessly compounding legal largesse.
More Content