Accruing annual leave during maternity leave
It is relatively well known that an employee continues to accrue annual leave during their maternity leave, at the same rate as if they were still at work, based on their current contract of employment. It is up to the employee to decide when you wish to take the annual leave and they should agree this with their employer in the usual way.
Is parental leave different from maternity leave?
Maternity leave is for biological mothers only. It is taken while pregnant and after the baby is born. Paternity leave is for biological fathers only. Adoption leave is for employees who have been matched with a child for adoption and they may take up to 52 weeks adoption leave (and may be entitled to 39 weeks of statutory adoption pay). If a couple jointly adopt a child, one may take adoption leave and the other parent may be able to take paternity leave or shared parental leave.
Parental leave is time off that employees who are parents can take to spend time with their child up until the child's 18th birthday. It is usually unpaid. Employees are entitled to take up to eighteen weeks of parental leave per child.
Parental leave can be taken after maternity leave. An employee may wish to take parental leave to:
- stay with a child who is in hospital
- spend more time with a child
- make school / childcare arrangements and to help them settle in.
Pay during parental leave
Parental leave is usually unpaid. An employer can pay staff taking parental leave if they choose to, but there is no obligation on them to do so.
If an employer does pay for parental leave this should be clearly set out in the terms and conditions of employment. All contractual terms and conditions other than remuneration should continue throughout a period of parental leave.
So... does an employee accrue annual leave during parental leave?
Taking parental leave does not affect other employment rights. Apart from the loss of pay and pension contributions, the employee's position remains as if no parental leave had been taken. This means, for example, that time spent on parental leave can be used to accumulate your annual leave entitlement.
Does annual leave accrue during parental leave, when the contract of employment is suspended?
Recently a case went before the European Court of Justice on this subject.
Tribunalul Botosani v Dicu
In Tribunalul Botosani v Dicu, the employee, Ms Dicu, was entitled to up to 35 days of annual leave, based upon the number of days she had worked that year. She took a period of maternity leave, then parental leave, and then annual leave.
Her employer refused to grant her 5 days leave on the grounds that this had not accrued as parental leave was not a period of actual work.
The European Court of Justice considered both the Working Time Directive and the Parental Leave Directive. For some purposes, the right to annual leave presupposes that the worker was actually at work but for others (such as sick leave or maternity leave) it doesn't.
However, sick leave is usually not foreseeable, and beyond the control of the worker, and maternity leave protects a special situation and relationship.
The Parental Leave Directive enables Member States to define the status of the employment contract during periods of parental leave, and in Romania, the contract was suspended. Therefore, the European Court of Justice held that parental leave was not a period of work for the purposes of the Working Time Directive.
The full judgement of the case can be read here Tribunalul Botosani v Dicu.
Kate Fretten, a Partner in our Employment Team, says "The European Court of Justice thought that these situations could not be applied as equivalents to the situation of parental leave. There is no ‘illness’ necessitating time off, nor is there the same imperative that underpins maternity leave. The Court also noted that in transposing the parental leave directive into national law, the Romanian authorities had chosen to direct that the individual taking parental leave remains a worker but their contract of employment is suspended, including the reciprocal obligations regarding work and salary and therefore it was acceptable for a period of parental leave not to be counted as ‘actual work’ in determining entitlement to annual leave. If this case had been in the UK, and applied UK directives, the outcome would have been different as time spent on parental leave can be used to accumulate your annual leave entitlement."
Can an employer refuse parental leave?
The right to request unpaid parental leave has been available for some years. Employees who qualify can ask their employer for up to 18 weeks’ unpaid leave to care for their child or children and the employer cannot unreasonably refuse the time off, although they can postpone it in certain circumstances.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
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