Annual leave before Maternity Leave?

cazziej

Hello, hoping somebody can answer this query for my daughter for me please. (I have also put this query in another section)

She is currently 24 weeks pregnant (25 on Friday) and needs to sort out her maternity leave/pay before then.

She started working there on 21.07.08 and so has been employed for 28 weeks by this Friday.

Her holiday year runs from January to December and she is entitled to 5 weeks holiday in a 12 month period.

Her EDD is 15.05.09 and it was her intention to start her maternity leave at 33 weeks, i.e around 27th of March 2009. She wanted to take her annual leave before this (4 weeks and 4 days as she has already taken 1 day this year), making her actual leaving date 23rd February 2009.

She saw her manager today, who told her that under no circumstances can she not be in work in March as it would leave them short staffed!! I know myself 100% that if she wanted to, she could start her maternity leave at 29 weeks, i.e. 27th February 2009, so in theory there is NO way the manager can MAKE her work in March!! She also told her that she cannot take her AL prior to her maternity leave as she will not have accrued it, nor can she be paid for it, but she MIGHT be able to roll it over for the next year.

Now, I have a few problems with this, the main one being what if she decides that she is NOT going back to work next year? Would they be obliged to pay her for the holidays? She WILL accrue the holidays as she will be on maternity leave, so I don't understand her reasoning.

A quick scan of the Maternity Leave Policy reveals this:

Holidays: "Accrue contractual holiday entitlement for whole leave as if at work. Employees can take any holiday that may be accrued up in the first six months of their maternity leave prior to starting their maternity leave. Any holiday accrued after the initial six months of maternity leave should be taken when the employee returns to work. If the accrued holiday is from the previous years entitlement, then the employee should take the holiday within 3 months of returning to work."

From this statement does it look like she CAN take ALL her leave prior to starting her maternity leave or not - I am a bit confused , or are they saying she CAN take only 1/2 her annual leave, and then the other half when she returns? But what if she doesn't return? I think she wants to wait and see when she has the baby :j if she is going back or not.

Also, will she be entitled to paid Bank Holidays while on maternity leave (probably not I would think).

Wow, this was a bit longer than I planned!!

Hope somebody can help.

Best wishes

Carol

beccybobeccy

It is your daughters choice when she starts Maternity. Not her managers. It is however their choice as to whether she can take the time before that as holiday. If the business can't accomodate her holiday then she should be able to have it paid to her.
She can start her Maternity up to 11 weeks before the week in which the baby is due.
Your daughter wouldn't be entitled to take the full leave when she goes on Mat Leave. Usually it is seperated into Pre and post 26 weeks. This could be taken or paid to her. She could roll it over if she was going to return in the same holiday year but if it goes into next year it is likely that she could lose it. If your daughter decides not to return then her workplace would have to pay her holiday she had accrued whilst still on maternity leave along with her notice period.
With the bank hols it would depend on whether they were accrued seperately or part of her holiday. Does she get bank hols on top of her contractural holiday. It's likely that these would be prorated again into pre and post week 26 but it may depend on her scheme.

Hope this helps

(I'm in HR in Financial Services)

liney

I think what it means is she can take roughly 9/12's of her entitlement before she starts maternity - half of the yearly entitlement accrued up to 6 months of maternity, and 3 months worth from Jan to March. so 25 days/4 x 3 is 18.75 (19 days) she can take before her maternity starts, including any she has already had. 3 weeks and 4 days assuming she works 5 days a week. The remainder of 6.25 days should be taken upon her return, or tagged onto the end of her maternity.

Her boss is under no obligation to allow her to take 5 weeks, or even 3 weeks and 4 days off in one block; holidays are down to the managers descretion, and will depend on who has also booked time off. We cannot book more than a fortnight in one block without specific permission due to continuity for example. Perhaps a more reasonable suggestion would be to break up 2 weeks earlier and use 1 or 2 days a week for the weeks prior to work part time for the few weeks before that.

Of course she could change her maternity leave date and break up earlier and be perfectly within her rights to do so, but that's a seperate issue to having holidays authorised.

surreysaver

beccybobeccy wrote: »

She could roll it over if she was going to return in the same holiday year but if it goes into next year it is likely that she could lose it.

You can not lose annual leave that you have accumalated whilst on mat leave. It is illegal.

honeypop

surreysaver wrote: »

You can not lose annual leave that you have accumalated whilst on mat leave. It is illegal.

I don't think this is correct, you can still accrue it while on maternity leave, but if the 'annual leave year' rolls over to the next one, a company doesn't HAVE to carry it over. Their carry-over policy should be in the handbook/contract. Instead, they may pay you for days accrued but not yet taken, agree this with them beforehand though. But as far as I recall, they don't have to let you carry them over to the next year.

surreysaver

honeypop wrote: »

a company doesn't HAVE to carry it over.

Yes they do. You cannot take it if you haven't accrued it, and the law says you have to take annual leave (working time directive), so they HAVE to carry it over. You cannot receive annual leave if on mat / off sick / whatever, so it has to be carried over.

honeypop

I apologise if I'm wrong but the information in various places, for example Business Link website says different.

"An employee may not take annual leave during maternity leave. You should instead allow the employee to take any untaken annual leave before and/or after her maternity leave.
Note, however, that:

• an employee cannot carry over statutory annual leave from one leave year to another

...It is up to you - in agreement with the employee - whether or not she can carry over or will receive pay in lieu for any untaken contractual annual leave."

When I saw Citizens Advice over this they also said the same thing (it will be happening to me as I am in this situation).

If you could provide a link to where you get your info from, this would help those of us in the same situaton.

liney

honeypop wrote: »

I apologise if I'm wrong but the information in various places, for example Business Link website says different.

"An employee may not take annual leave during maternity leave. You should instead allow the employee to take any untaken annual leave before and/or after her maternity leave.
Note, however, that:

• an employee cannot carry over statutory annual leave from one leave year to another

...It is up to you - in agreement with the employee - whether or not she can carry over or will receive pay in lieu for any untaken contractual annual leave."

If they won't let you carry it over, then they must let you take it before because while you are on maternity leave you will be accruing the holiday. They can't 'steal' your holiday pay just because your baby is due the wrong time of year meaning your OML spans two holiday years. Call ACAS.

As for the highlighted part, that is simply not true. As long as you take statutory minimum holiday entitlement for the year, your contract may allow you to carry over holidays to the next year. It is not illegal to do so.

wannawin13

I had to query this recently and was told by acas that your employer has to allow you to take a/leave before your mat leave.
I got mine sorted along with bank hols as well


goodluck xx

cazziej

Thanks for all the helpful and informative replies. She has sorted it now. She is going to finish at 33/40 pregnant on 27th March, but will take 2 weeks AL first, starting 16th March. She has another week in February and will take the remainder at the end. As long as the end is in site, she is happy!!

Best wishes

Carol

fairplay4u

Glad your daughter got it sorted. I was in a similar position this time 2 yrs ago but my employers where wonderful, not only was i able to take 4 wks leave before maternity leave started, I also accrued bank holiday entitlement which i was able to carry over, a wonderful pleasant surprise.
I hope your daughter is doing well and tell her to enjoy her time off with her little one.