This week the experts, Adam Partington and Esther Smith advise on an employee using up holiday during maternity leave.
The question: Maternity vs holiday
We have an employee whose baby is due on the 29 October. She has 19 days of holiday allowance left for the year and would like to take all of it before she goes on maternity leave. She works mostly from home and wants to keep working for as long as she can however, and so would like to take all of her holiday through October and the beginning of November – this means she would be on holiday (not maternity leave) when the baby is born. Is this OK? Can she start her maternity leave straight after her period of annual leave, by which point her baby might be up to three weeks old? Or is there a reason why the period of maternity leave has to start from the day the baby’s due?
Legal advice:
Adam Partington, solicitor, Speechly Bircham
Employees can choose to start maternity leave on any day, provided that it is not before the beginning of the 11th week before the expected week of childbirth (EWC). Furthermore, maternity leave starts on the earliest of:
• The employee’s chosen start date;
• The day after pregnancy-related absence during four weeks before EWC; or
• The day after childbirth
Therefore in your scenario if the employee was still on holiday when her baby was born, her maternity leave would start on the day after childbirth not on the date her holiday ends. This would mean that the employee would have some outstanding holiday still to take.
The European Court of Justice has held that women must be able to take the paid holiday to which they are entitled during a period other than their maternity leave. Although the Working Time Regulations provide that annual leave cannot be carried over from one leave year to the next, European law has cast doubt on this position.
There is nothing to prevent you allowing the employee extra leave on return from maternity leave to make up for any leave that she had been unable to take before her maternity leave began. Alternatively she could go on holiday earlier than currently proposed so that she uses up her holiday before her maternity leave begins or her baby is born (whichever is the earlier).
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Esther Smith, partner, Thomas Eggar
The statutory provisions covering maternity leave say that maternity leave starts automatically at the point the baby is born. Therefore, if the employee gives birth when she is on holiday, that will automatically trigger the start of her maternity leave, and any unused holiday entitlement will be carried over.
I suggest, if the employee is agreeable, you arrange for the holiday to commence sooner, so that it is all used up before the baby arrives.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
