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Ask the expert: Set dates of annual and maternity leave


Ask the expert

Can an employer claim annual leave days back if they are not taken in accordance with the contract and fall within an employees’ maternity leave? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether this is discrimination.

The question:

I have a question on potential discrimination against pregnant employees, regarding set dates of annual leave and maternity leave. A company gives all employees 25 days’ holiday but sets out in a manual, that is appended to each employee’s employment contract, that three days of this must be taken on set dates over the Christmas period.

An employee goes on maternity leave towards the end of the year and uses her last three days annual leave that year, with her manager’s sign off, on days other than on the set dates. These set dates then fall in her maternity leave period.

Can the company claim those three days’ annual leave back, on the basis that they weren’t taken as annual leave in accordance with the manual, or is this discrimination on the basis of pregnancy (as the employee would have taken them as holiday on the set dates stated in the manual but for the fact that she was on maternity leave)?

Legal advice:

Esther Smith, partner, Thomas Eggar

As I understand your question, the employee was allowed to take her three days off on dates other than over the Christmas period, and the Christmas days then fell within her maternity leave period.

If this is right, I can see no reason why the company would want to ‘claim back’ the Christmas days. If they fell within her maternity leave period she would only receive payment for them according to her entitlements to SMP or company maternity pay as the case may be, and would not have received payment for them as ‘holiday’ as she would be on maternity leave. In any event the company has already agreed, it appears, for the employee to have these days as paid holiday elsewhere.

If the company were to try to enforce the terms of the manual regarding taking leave at Christmas, the employee would have a good claim against the employer, for discrimination on the basis that it is disproportionately difficult for women on maternity leave to comply with the condition or requirement in the manual that holiday be taken at certain times, and that this therefore amounts to indirect discrimination. This is the same principle that applies to the company rules that holiday not taken at the end of the holiday year is lost.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

A woman who is on maternity leave accrues, but cannot take, annual leave during the maternity leave period. I’m not entirely sure what you mean when you say “can the company claim those three days back”.

The fact is that, in your example, the woman on maternity leave has had exactly the same holiday as everyone else, it is just that she has been allowed to move the otherwise fixed three days because she couldn’t take them because she was on maternity leave.

If by “claim them back” you mean deprive her of three days holiday then the short answer is yes, by doing so you would be discriminating on the ground of sex as this employee would have three days less holiday just because she was on maternity leave.

Martin Brewer can be contacted at: [email protected]

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