Where an employee is unable to take all the statutory annual leave that she has accrued during maternity leave during that annual leave year, because she is on maternity leave, must she be allowed to take it during the following year?

Where an employee is unable to take all her statutory annual leave, due to being on maternity leave, it is advisable to allow her to carry the untaken leave over into the following year.

In Merino Gómez v Continental Industrias del Caucho SA [2004] IRLR 407 ECJ, the European Court of Justice (ECJ) held that pregnant workers have a dual entitlement to annual leave and maternity leave. Statutory annual leave should be protected and it should be possible for an employee to take it during a period other than the maternity leave period. However, the ECJ did not address the issue of carrying over leave from one leave year to the next. Although the Working Time Regulations 1998 (SI 1998/1833) state that the 1.6 weeks' additional statutory leave entitlement under reg.13A may be carried forward into the leave year following the one in which it falls due, under the terms of a relevant agreement, they state that the four-week entitlement under reg.13 cannot be carried over. This presents something of a problem, but, in the absence of a clear judgment, the safest course of action is to allow carry-over of statutory holiday where an employee has been on maternity leave.

The Government had previously proposed to revise the Working Time Regulations 1998 to allow the full 5.6 weeks' statutory holiday to be carried over when a worker is unable to take it due to absence on maternity, paternity, parental or adoption leave. However, the proposed changes have not been implemented.