My wife has recently returned to work after a years maternity. Before she left she was on a full time contract, and now she has returned part time.
She has been told that she accrued Bank Holidays holiday time whist she was on maternity, and has also accrued 2 months worth of holiday in the current year.
However, because she is now part-time, they are saying that they will pro-rate all the accrued holidays as per her current working hours, as opposed to the hours she was on at the time of accrual, so instead of 10 days she will get 5.
Is this a)legal and b)correct
In answer a) no b) no!
Your wife's change to contract is effective from when she returns to work, unless this was agreed and confirmed in writing with an effective date of last year prior to her going on maternity leave. The legal advice is very clear on this so I'm surprised that the employer is doing this. Just to play devil's advocate, are you absolutely sure this is what they are saying? If it's holiday that was accrued during the maternity leave then it is to be taken as per the contract that was in place at the time she was off.
If the employer won't be moved I suggested your wife contacts the ACAS help line - I'm sure a gentle push from ACAS will help.
Good luck, MB.
Thanks for the reply, we are sure this is what they are saying, as we have the following email
Your normal entitlement would be 23 days (165.6 hours) per annum. However, as you now work
18 hours a week, your entitlement is 83 hrs per annum.
There were 10 public holidays (72 hrs) while you were on maternity leave. You need to pro-rata the hours,
and add 36 hrs to your annual leave entitlement.
This will give you a total for 2012/13 of 119 hrs for the 2012/13 Annual leave year.
Any annual leave you did not take in the 2011/12 leave year can be carried over to this year, up to a maximum of
10 days only. This will need to be pro-rated too.
Next stop, ACAS
The last line is incorrect - benefit is based on the contract that was in place at the time, not the current contract (hence me asking what date the contract change to part time is). Additionally, you are entitled to take all the holiday including bank holiday accrued during the maternity leave, not just 10 days of it (unless this is the balance of that holiday remaining). Has your wife tried tackling the employer? I'd write a polite, calm letter or e-mail response, something along the lines of "Thank you for confirming my holiday entitlement for 2012/13 I understand that I am entitled to 119 hours. Regarding the holiday carried over from my maternity leave, I would like to dispute that this will need to be pro rated. My understanding, having taken legal advice, is that this holiday should be accrued within the terms of the contract that was in place at the time, which was a full time contract. I respectfully ask you to adjust this accrual accordingly. I'm looking forward to returning to work and want to make my part time arrangement successful for both of us, however I strongly feel this situation needs to be resolved as a matter of priority so it's not negatively imacting my return.
Once again, good luck, MB
Thanks again for the response
Are you saying they are within their rights to pro-rata the bank holidays from the last calendar year then, we don't think so?
The latest on this is that they have refused to acknowledge what they are doing is wrong, and we have contacted ACAS a few times and they have now suggested we file a grievance
My wife is now in her 4th week back at work so we really don't want this dragging on
'Are you saying they are within their rights to pro-rata the bank holidays from the last calendar year then, we don't think so?'
I'm a little confused about this line as no where in my posting did I suggest anything like this! I said absolutely the opposite. To reiterate, I do strongly believe that none of the outstanding holiday from the maternity leave should be pro rated. Have you tried the letter I suggested? It might be worth addiing the line that ACAS agree this is incorrect and have suggested raising a grievance but you want to do everything possible to avoid this happening.
Sorry, it is because you quoted 119 hours, which includes the pro-rated bank holidays, so i just wanted to confirm
They are adamant that they will not budge, even after we mentioned we had taken advice from ACAS, and even provided my wife with the forms with which to raise the grievance
I don't really understand their stance
Thanks again for your advice
And thinking about it, it's not really clear whether they have taken into account bank holidays from the 2012/13 year with regards holiday entitlement
Apologies. I quoted the hours thinking it was the 2012/13 year (i.e. going forward) and not including the 2011/12 accrual. I still think that the Company is in the wrong. Do any of my HR colleagues on this site have advice about how to deal with this? It seems a shame to have to raise a grievance as I generally advise not to go down this route as the outcome usually favours the employer (yes, I am an employer myself but think that the grievance process is weighted in favour of the employer in an employee vs employer situation - I liken it to 'marking your own homework' - but that's not really relevant just my view). I can only suggest that it might be worth finding an employment lawyer (perhaps via your local Citizen's Advice Bureau) and asking if they can locate the part of the law that will provide a definite statement. Alternatively, are there any other females in the organisation that your wife can join up with who might in the future be in the same situation? Alternatively, a well worded letter to the MD might be in order.
Sorry it's not that positive, sometimes we just have to 'suck it up' as they say in the USofA, be the bigger person and look to the future with our heads held high. The employer is being short sighted - although I can't for one moment advocate any type of positive action, but I suspect that if your wife is feeling unwell on a particular day, rather than forcing herself to go to work as she normally would, I expect she'd opt to stay at home instead....
Continued luck, MB.
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