Postby juliamummy » Mon Jul 18, 2011 2:30 pm
The answer isn't quite so simple as Yes you do accrue bank holidays whilst on maternity leave - that is because English laws relating to maternity rights and working time (i.e. holiday) aren't clear cut on the issue. However, European case law (which the English Tribunals must have regard to) gives a strong indication of what your rights are and many employers are observing these. Here's a brief summary:
* during maternity leave all of your terms of employment, other than those relating to pay, continue. That means if you are entitled to, let's say, 25 days' holiday plus bank and public holidays, then those holiday days should accrue during that year;
* however, working time legislation that governs holiday entitlement, says that the minimum entitlement to holiday (that is 28 days for full time employees inclusive of any bank and public holidays, pro rated for part time employees) should be taken in the year it accrues, and no carry over should be permitted. This presents quite a bit of a conundrum for employers and women on maternity leave, because maternity leave generally spans two holiday years, and it may not be possible to take all the leave entitlement for that year, before your maternity leave commences (particularly if some of your holiday entitlement is actually bank and public holidays which fall after your maternity leave has commenced).
* So the English law rights to holiday and rights on maternity leave don't sit too happily together - fortunately there is a European case (Gomez v Continental Industrias del Caucho) which says that in relation to statutory holiday at least, if a woman who has been on maternity leave can't take it in the year it accrues she should be able to carry over and take it on her return to work. Employer's best practice is to assume that the English courts would follow this European decision to grant a woman returning from maternity leave the right to take untaken statutory holiday from the year before.
* Note: It is up to the employer what happens to any additional holiday beyond the 28 days holiday (remember that is inclusive of bank and public holiday)- so you would need to look at your contract / maternity policy to see what it says about the right to carry over. The Gomez case wasn't concerned with contractual rights, but the ECJ decision did suggest that actually contractual entitlement should be carried over as well because of the special and unique position women are in.
* In summary, you can argue strongly that you should be allowed to carry over any unused statutory entitlement up to 28 days; you might as well also argue just as strongly for the full contractual entitlement (if that is more than 28 days in total for the year), but you aren't in such a strong position here.
... Apparantly the law changed in 2009 ... and now states:
