Weekly dilemma: Bank Holiday pay during maternity leave

We have an employee who has recently started ordinary maternity leave (OML). She will therefore be on OML over the Bank Holidays that fall during the Christmas and New Year period. Do we have to pay the employee for these days, or alternatively give her time off in lieu?

No – at present, if Bank Holidays fall during maternity leave, the employee has no right to be paid for them or to take them at another time.

There are two points to be aware of, however. If you have a policy, written or otherwise, of allowing staff who are sick on a Bank Holiday to take the day off in lieu (which is unusual), then you should also allow a woman on OML to take the Bank Holidays at another time. If you refuse, the employee may argue sex discrimination.

The position will differ if the employee is simply entitled to 20 days’ holiday a year, and those 20 days include the eight UK Bank Holidays. Under the Working Time Regulations, all staff are entitled to 20 days’ holiday a year. In these circumstances, you should allow the employee to take the Bank Holidays that fall during her maternity leave at another time to ensure there is no breach of the regulations.

By Joy Andrews, solicitor, employment, Bates Wells & Braithwaite

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