What about bank holidays which occur during maternity leave?

Although employees have no automatic right to take bank holidays, many employers provide for paid bank holidays in contracts of employment. In such cases, the employee is clearly entitled to take and be paid for any bank holidays which fall due before or after her maternity leave. However, what about the bank holidays which occur during her maternity leave?

Employees sometimes argue that they should be paid for bank holidays that fall during maternity leave and many employers do in fact make a payment for bank holidays, particularly those that occur during OML. However, the legal position has not yet been properly tested in the UK courts.

There is, however, a case about the related (but different) issue of teachers’ holidays. The case involved a teacher whose maternity leave coincided with the school half-term holiday. She argued that she was worse off than her colleagues because they were not working during half-term and were being paid full pay whereas she was not working but was only being paid half pay under the employer’s maternity policy.

The Court of Appeal rejected her argument, confirming that women on maternity leave are in a special position as regards pay and cannot be compared with colleagues working normally.

Although this case was not about bank holidays it suggests that an argument for pay on a ‘missed’ bank holiday would also fail. Until this issue is resolved by a specific UK case or addressed by government guidance, we advise that employers can rely on this decision and refuse requests for pay for ‘missed’ bank holidays. (The new rules on benefits during AML do not impact on this debate).

Of course, if you have historically taken a different approach and paid for some or all bank holidays you may be contractually unable to draw back from this regardless of any case law developments.

Remember, also, even if you have a practice of paying for bank holidays which fall during maternity leave, the employee is still treated as being on maternity leave not on holiday. As a result, the day you have paid for does not technically count as a day of holiday.