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Holiday entitlement while on maternity or statutory family leave

Last updated: 19 May 2021

Employees are entitled to a statutory minimum of 5.6 weeks’ annual leave per year (28 days for full time employees, pro-rata for part-time employees). Some employers offer additional contractual annual leave on top of this.

During any period of statutory maternity, paternity, adoption, shared parental or parental leave, you will continue to accrue statutory and contractual annual leave in the same way as if you had been at work. But you are not automatically entitled to any contractual holiday entitlement, unless your employment contract states otherwise.

You cannot take annual leave during statutory family leave. For example, if you are on maternity leave, you cannot take annual leave at the same time. You must take your annual leave before or after your family leave.  However, if you are on shared parental leave, you can insert periods of annual leave in between blocks of shared parental leave.

Ordinarily, you must take your statutory holiday entitlement (5.6 weeks, or 28 days) in a leave year, or lose it. Your employer must allow you to take your full entitlement. If they do not allow you to do so, they may face penalties.

Since maternity and adoption leave is up to 52 weeks, in many cases, leave entitlement will cross from one holiday year to the next. By law, if you are unable to take your annual leave due to being on maternity leave, your employer is required to allow you to carry it over into the following leave year.

If you cannot take your annual leave due to being on maternity or family leave, then your employer must allow you to carry over up to one years’ statutory entitlement (5.6 weeks, or 28 days) into your next holiday year, once you return to work. This usually applies to annual leave accrued during maternity leave, and annual leave accrued but not used before maternity leave may be subject to the ‘use it or lose it’ policy.

Frequently asked questions

Can I take annual leave at the start or end of my family leave?

Many employees wish to add the annual leave they have accrued to the start or end of their period of family leave, so that they have an extended period of time away from work.

There is no right for employees to do this: employers can refuse a request to take annual leave on particular days, provided they give you sufficient notice of the refusal and you are allowed to take the annual leave at some point during the leave year. They cannot pay you in lieu of your statutory holiday entitlement unless your employment is coming to an end.

If your family leave spans two holiday years, your employer must allow you to carry over any untaken holiday from the first year into the second if you would otherwise run out of time to take all of your holiday, even if they would not normally allow you to carry over holiday.

You should discuss your annual leave plans with your employer before going on family leave, to agree how this will be managed. If your employer is refusing to allow you to take the annual leave you have accrued, you should seek advice.

Can my employer require me to take all of my annual leave before/after my family leave?

Yes, they may be able to as long as they give you proper notice.

Your employer may require your take statutory holiday on certain dates, as long as your employer gives you proper notice. Notice must be at least twice the length of the period of leave that you are being required to take. For instance, if your employer requires you to take 5 days of annual leave before your maternity leave, they must give you at least 10 calendar days’ notice.

Sometimes employers will allow and even require expecting parents to take their full years’ annual leave entitlement before maternity leave, or they may only allow you to take already accrued annual leave before your maternity leave and the remainder after you return to work.

I want to use my annual leave to have a phased return to work, can my employer refuse?

Yes, they can if they give proper notice, but they must allow you to take your annual leave in a different way or on different dates.

You must give notice if they wish to take annual leave. The notice must be at least twice the period of leave that you are requesting. For example, if you want to take 5days’ leave, you must give your employer at least 10 calendar days’ notice.

Your employer may refuse your holiday request by serving a counter-notice. This must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing. For example, if you request 5 days’ leave, your employer must give notice at least five calendar days before the date one which the leave is to start that it wishes to refuse your request.

Remember that your employer must allow you to take your annual leave.

Can my employer pay me in lieu of my holidays?

No. Your employer cannot pay you in lieu of holidays that you’ve accrued during maternity leave or any other period. Your employer must let you take your holidays, and must let you carry over your holidays in to the next leave year if you can’t take them because you’re on maternity leave.

The only time your employer is permitted to pay you in lieu of your holidays is when your employment is terminated. In that situation, you employer should pay you for any accrued but untaken annual leave in your last pay package.

Can I carry over bank holidays?

It depends – if your employer includes bank holidays in your statutory annual leave entitlement, then they must allow you to carry over leave that you would have taken on bank holidays during your family leave. For instance, if a bank holiday falls during your maternity leave, your employer must give you a day in lieu of that bank holiday to take at as annual leave once you return to work.

However, if your employer provides bank holidays in addition to statutory annual leave, then whether they need to carry over a bank holiday would depend on the terms of your employment contract and/or their leave policy. You should check these documents carefully to see whether you should be given a day in lieu of the bank holiday.

I resigned during maternity leave, and my employer is claiming I owe them for annual leave

If you take all of your annual leave before maternity leave, and resign before you return to work, your employer would have ‘overpaid’ you for annual leave.

Technically, they can deduct any leave taken in excess of what has accrued from your pay. But if you are not receiving any pay or not enough pay to do this they may not be able to claim this back from you. They also cannot deduct money from your Statutory Maternity Pay.

If you are considering resigning during your maternity leave, you should time your notice carefully. For more information, see our article on resigning during pregnancy and maternity or shared parental leave.

I’m taking my annual leave at the end of my maternity leave, am I protected from maternity discrimination?

You are entitled to protection from unfavourable treatment from your employer on the basis of pregnancy and maternity during the “protected period”. Any such treatment will be unlawful maternity or pregnancy discrimination.

What is the protected period?

The protected period begins at the start of your pregnancy and usually ends at the end of your maternity leave. It does not continue into any period of annual leave which you have used to delay your return date.

What if I have been discriminated against after the protected period has expired?

If the protected period has expired but you think you have been treated less favourably because of your pregnancy or maternity leave, this may amount to pregnancy/maternity or sex discrimination, depending on the circumstances. For example, if a decision was taken (for example, to dismiss you because you have taken maternity leave) during the protected period, but carried out afterwards it may still be maternity discrimination. 

If the unfavourable treatment is decided on after your return from maternity leave, for example to demote you because you did not attend a training (as you were on maternity leave), then you may need to claim sex discrimination instead, but you would need to compare your treatment with a man who had also missed training.

A tribunal found that dismissing a woman for sickness absence due to post natal depression which occurred after the end of maternity leave did not amount to pregnancy/maternity discrimination – post natal depression should be treated the same as other sickness absence once the protected period is over.

You should contact us for further advice if you think discrimination has occurred after the protected period.

I was made redundant while on annual leave after maternity, am I still protected?

You are entitled to additional protections where your job becomes redundant during maternity leave (and similar protections apply during shared parental leave).

When your maternity leave ends, you will not benefit from these extra protections. However, the redundancy may amount to direct or indirect sex discrimination depending on the circumstances. For example, if the redundancy selection criteria penalise you for having been absent while you were on maternity leave, this is likely to amount to indirect sex discrimination.

You should contact us for further advice if you are made redundant in these circumstances.

The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.