A part-time stylist of mine is due to go on maternity leave, and still has 6 days’ holiday owing to her for this leave year. Do I have to pay her all 6 days’ holiday pay at the start of her maternity leave?
A woman’s entitlement to Statutory Maternity Pay (SMP) during her maternity leave has no bearing on her annual leave entitlement. Additionally, employees accrue annual leave from day one of employment and your employee’s right to take it is not extinguished because she is going on maternity leave.
Because the current entitlement to maternity leave can mean that your employee could be away from work for up to a whole year, it is important to agree with her what will happen with her remaining annual leave entitlement. You should talk to your employee as soon as possible to decide a way forward. Annual leave and maternity leave cannot be taken at the same time and case law tells us that a woman who cannot take her leave in the current leave year because of maternity leave should be permitted to carry it over to the next leave year. This is because both types of leave have a differing purpose: annual leave provides rest to protect health and safety; maternity leave is to protect a woman’s biological condition after childbirth and protect her special relationship with her child.
You may also agree with your employee that she takes her 6 days immediately before her maternity leave starts. It is not necessary to do this given the ability for a woman to carry over her leave, but may be the better option for administrative purposes and especially if there is not enough time remaining. This period would still need to be classed as annual leave and not maternity leave.
Paying in lieu of statutory annual leave is not permitted unless employment is terminated. If annual leave in excess of the statutory minimum is given (i.e. in excess of 5.6 working weeks) then this can be paid rather than being taken as annual leave by agreement between employee and employer.
If you need any clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772