Holiday rules which allow no or limited carrying forward of untaken holiday from one year to the next can disadvantage employees on maternity leave, particularly if they take the full 12 months’ leave. An employee can end up losing a large amount of holiday if the holiday year ends when she is on maternity leave. Equally, however, if an employee is allowed to carry forward all of her untaken holiday from one year to the next, she can return to work with a large amount of holiday stored up, potentially causing you operational difficulties.
The problem can sometimes be avoided if, once you know that the employee is pregnant, you remind her about your normal holiday rules on carrying forward of accrued but untaken holiday and explain that these will continue to apply subject to very limited exceptions (see below).
You could encourage the employee to take some of her holiday entitlement immediately before her maternity leave begins or to terminate her maternity leave early and transfer onto holiday before the holiday year ends.
If the employee still does not use up all her holiday before the holiday year ends, then our advice is to apply your normal rules on carrying forward holiday entitlement, even if this results in the employee losing some holiday. There is potentially one exception to this, which is where the employee could not reasonably have taken all of her statutory minimum holiday before going on maternity leave.
For example, if your holiday year begins on 1 January and the employee’s maternity leave begins on 15 January then she cannot take all her statutory minimum holiday before starting her maternity leave. In these circumstances, in our, view EU law probably requires you to allow the untaken portion of her statutory minimum holiday to the following year. However, this is an issue which may be resolved by future case-law and, given the potentially large amounts of holiday at stake, many employers choose a ‘wait and see’ approach of not allowing carry- forward under any circumstances and settling any complaints which arise about this.
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