Myth of the month – Am I entitled to holiday when I’m on maternity/shared parental/ unpaid parental leave?
Here we set out some commonly asked questions about annual leave and family leave (maternity/paternity/adoption/shared parental leave and unpaid parental leave).
Will I accrue holiday when I’m on maternity or other family leave?
Employees are entitled to a statutory minimum of 5.6 weeks’ annual leave per year (28 days for full time employees, pro-rata for part-time employees). Some employers offer additional contractual annual leave on top of this.
Throughout any period of statutory maternity, paternity, adoption or shared parental leave, you will continue to accrue statutory and contractual annual leave in the same way as if you had been at work.
If you take unpaid parental leave you will also continue to accrue statutory annual leave as though you had been at work. But you are not automatically entitled to any contractual holiday entitlement, unless your employment contract expressly states otherwise.
You cannot take annual leave during any of these types of family leave. For example, if you are on maternity leave, you cannot take annual leave at the same time: you must take it before or after your maternity leave. However, if you are on Shared Parental Leave, you can insert periods of (paid) annual leave between blocks of shared parental leave.
Can I choose to add annual leave to the start or end of my family leave?
Many employees wish to add the annual leave they have accrued to the start or end of their period of family leave, so that they have an extended period of time away from work.
There is no express right for employees to do this: employers can refuse a request to take annual leave on particular days, provided they give you sufficient notice of the refusal and you are allowed to take the annual leave at some point during the leave year. They cannot pay you in lieu of your statutory holiday entitlement unless your employment is coming to an end.
If your family leave spans two holiday years, your employer should allow you to carry over any untaken holiday from the first year into the second if you would otherwise run out of time to take all of your holiday, even if they would not normally allow you to carry over holiday.
You should discuss your annual leave plans with your employer before going on family leave, to agree how this will be managed. If your employer is refusing to allow you to take the annual leave you have accrued, you should seek legal advice.
Your employer can require you to take your annual leave on specific dates in the holiday year when it was accrued, provided that it gives you sufficient notice. However, if your family leave spans two holiday years, your employer cannot force you to take annual leave relating to the second holiday year before that holiday year has started.
You are entitled to specific protection from unfavourable treatment from your employer in relation to the “protected period”. Any such treatment will be unlawful.
What is the protected period?
The protected period begins at the start of your pregnancy and usually ends at the end of your maternity leave. It does not continue into any period of annual leave which you have used to delay your return date.
What if I think I have been discriminated against after the protected period has expired?
If the protected period has expired but you think you have been treated less favourably because of your pregnancy or maternity leave, this may amount to pregnancy/maternity or sex discrimination, depending on the circumstances. For example, if a decision was taken (for example, to dismiss you because you have taken maternity leave) during the protected period, but carried out afterwards it may still be maternity discrimination. If the unfavourable treatment is decided on after your return from maternity leave, for example to demote you because you did not attend a training (as you were on maternity leave), then you may need to claim sex discrimination instead, but you would need to compare your treatment with a man who had also missed training.
A tribunal found that dismissing a woman for sickness absence due to post natal depression which occurred after the end of maternity leave did not amount to pregnancy/maternity discrimination – post natal depression should be treated the same as other sickness absence once the protected period is over.
You should contact us for further advice if you think discrimination has occurred after the protected period.
What do I do if I am made redundant before I return to work but after the end of my maternity leave?
You are entitled to additional protections where your job becomes redundant during maternity leave (and similar protections apply during shared parental leave).
When your maternity leave ends, you will not benefit from these extra protections. However, the redundancy may amount to direct or indirect sex discrimination depending on the circumstances. For example, if the redundancy selection criteria penalise you for having been absent while you were on maternity leave, this is likely to amount to indirect sex discrimination.
You should contact us for further advice if you are made redundant in these circumstances.