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Issue 102 (July 2005)
Maternity leave is no holiday
The regulations governing maternity rights in the UK state that all pregnant employees have the right to 26 weeks' ordinary maternity leave (OML). Women with 26 weeks' service at the 15th week before the baby is due are entitled to a further 26 weeks' additional maternity leave (AML) which is unpaid.
In this article, the Head of Equality at Thompsons' Employment Rights Unit in London, looks at holiday entitlement during both periods of leave.
Does Holiday accrue during OML?
Under the Maternity and Parental Leave Regulations 1999, women on ordinary maternity leave (OML) retain all their contractual rights (except for pay), as though they were still at work.
That means the woman still has the right to accrue holiday during her OML as she would have done at work. In practice this means that she can take whatever paid holiday she has accrued before or after her maternity leave.
Can she carry holiday over?
The right to carry holiday over from one leave year to the next depends, however, on the terms of the woman's contract (and not the legislation governing maternity leave).
If the contract says she can carry the holiday over, then no problem. That principle also applies to holiday accrued during maternity leave just as much as it would to normal leave.
But what happens when the contract does not allow for holiday to be carried over, or says nothing about it? This is a particular problem for women who do not have time to take their holiday after their maternity leave and before the end of the leave year. The obvious answer is that they should take it before the maternity leave starts.
What happens if she cannot take the holiday before OML?
But if the woman cannot use up her holiday entitlement before going on leave (perhaps because of the demands of the business, or because she has already gone on leave), what happens then?
Until recently, employers have basically said that if the woman does not "use it", she "loses it". However, following the decision by the European Court of Justice (ECJ) in Gomez v Continental Industrias del Caucho (2004, IRLR 407) (LELR 90), there may now be a way round this (although this does depend on how the case is interpreted in the courts here).
Basically, Ms Gomez' contract was governed by a collective agreement, which stated that all staff had to take leave during one of two specified periods over the summer shutdown. However, those periods coincided with Ms Gomez' maternity leave.
The ECJ said that the employer could not get round the requirement to give four weeks' annual leave under the Working Time Regulations (WTR), nor 14 weeks' maternity leave under the Pregnant Workers Directive, by relying on the collective agreement. It said that Ms Gomez was therefore entitled to take her annual leave after the summer shut down.
This decision may, therefore, mean that employers have to allow holidays to be carried over in situations where the woman has not been able to take her holiday before going on maternity leave.
Can contractual leave be carried over?
The ECJ did not answer the question of contractual holiday entitlement in Gomez as it was concerned with the issue of statutory leave under the WTR.
However, it did say that rights connected with the employment contract (other than pay) must be protected: "a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed for the whole period."
The word "including" is significant. This suggests that, in the view of the ECJ, contractual rights may receive the same protection as statutory rights. This would include the right to carry over contractual entitlement when the worker cannot take the leave during the current leave year, for whatever reason.
What about workers with fixed holidays?
Workers with fixed holidays, such as teachers, may be able to argue that maternity leave that falls during any fixed holiday period (say, half term or the summer holidays) can be taken outside the holiday period.
What about AML?
Under the 1999 regulations contractual rights do not accrue during AML, and that includes contractual holiday entitlement.
The position in relation to the four weeks' statutory minimum leave under UK law remains unclear, however, pending the outcome of the appeal to the House of Lords in Commissioners of the Inland Revenue v Ainsworth (LELR 101).
For the time being, the law remains as set out by the Court of Appeal in Ainsworth, which overturned Kigass Aero Components Ltd v Brown (2002, ICR 697). It said that employees could not accrue rights to statutory annual leave during AML.
It is worth repeating that Ainsworth and Kigass concerned rights to statutory leave only. Rights to accrue contractual leave (subject to the Sass case below) depend on the contract of employment. If the contract allows for accrual of contractual rights during AML then leave will accrue. If it does not, or is silent, it will not accrue.
What about the Sass case?
The case of Land Brandenburg v Sass (2005 IRLR 147) is also of relevance. Ms Sass had a statutory entitlement to 20 weeks' maternity leave. She also had a service-related right to be appointed to a higher salary. Her eight weeks of minimum maternity leave were taken into account in terms of appointing her to the higher salary, but not the full 20 weeks' maternity leave.
The ECJ held that this was a breach of the Equal Treatment Directive, and in exercising her rights to maternity leave she could not "be made subject to unfavourable treatment regarding conditions to be fulfilled in order for her to attain a higher grade." This applied not just to her minimum maternity entitlement but to the full (statutory) maternity leave that she was entitled to take. It would seem that the Sass case means that rights should accrue during AML as well as OML. Whatever the outcome in Ainsworth, there is a strong argument that both statutory and contractual rights to holiday will accrue during AML.