>Chris is a partner in the Employment Law Group of the Arthur Cox Belfast Office in Northern Ireland.
Chris has extensive experience dealing with both contentious and non-contentious employment law matters. Chris advises a range of employers on all aspects of employment law including executive appointments, severance, grievances, disciplinary issues and trade union matters. Chris has represented clients before the Industrial Tribunal, Fair Employment Tribunal and the Court of Appeal in Northern Ireland in employment litigation such as unfair dismissal, equality/discrimination and whistleblowing. Chris’ practice area includes advisory work and corporate transactions.
Is An Employee Who Is Off On Maternity Leave Permitted To Carry Over Her Accrued But Untaken Annual Leave?
An employee who is on maternity leave and therefore cannot use annual leave must be permitted to take her full holiday entitlement outside her maternity leave period. This was confirmed by the European Court of Justice in Merino Gomez v Continental Industrias del Caucho SA (C342/01) [2005] ICR 1040.
A woman's contractual terms (except those relating to remuneration) continue during periods of ordinary maternity leave and additional maternity leave. This means that women on maternity leave continue to accrue statutory annual leave entitlement under regulations 15 and 16 of the Working Time Regulations (Northern Ireland) 2016 (equating to 5.6 weeks for a full-time employee) along with any additional contractual entitlement.
The Merino Gomez case referred to above did not explicitly deal with the carry-over of annual leave that was untaken due to a period of maternity leave. However, as carry-over of leave is permitted for periods of sickness absence, by extension this would likely also apply to maternity leave. For the avoidance of any doubt, employees unable to take annual leave due to maternity leave should be permitted to carry over their full statutory annual leave entitlement.
In order to mitigate potential issues with carry over in the context of maternity leave, employers may wish to consider the following options:
(a) Encouraging employees to use their statutory annual leave entitlement prior to a maternity leave period;
(b) Requiring employees to take the carried-over leave immediately before returning to work; or
(c) Requiring employees to take any carried-over leave within a specified period after returning to work.
It is prudent to have a comprehensive maternity policy in place that deals with annual leave accrual and carry over.
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