Q&As

Where holiday pay accrued during maternity leave is calculated by reference to the 12 weeks before the calculation date, should (a) weeks during which the employee was absent due to pregnancy-related sickness (b) weeks during which the employee was absent due to non-pregnancy-related sickness be excluded from the calculation?

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Published on LexisPSL on 10/12/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where holiday pay accrued during maternity leave is calculated by reference to the 12 weeks before the calculation date, should (a) weeks during which the employee was absent due to pregnancy-related sickness (b) weeks during which the employee was absent due to non-pregnancy-related sickness be excluded from the calculation?
  • Worker with normal working hours
  • Worker with no normal working hours
  • Prohibited conduct

Where holiday pay accrued during maternity leave is calculated by reference to the 12 weeks before the calculation date, should (a) weeks during which the employee was absent due to pregnancy-related sickness (b) weeks during which the employee was absent due to non-pregnancy-related sickness be excluded from the calculation?

For information on the accrual of paid holiday entitlement during maternity leave, see Practice Note: Maternity leave—Holiday entitlement during maternity leave.

In relation to holiday pay, a worker is entitled to be paid:

  1. in respect of any period of statutory holiday

  2. in lieu of any statutory holiday entitlement accrued but unused on termination of their employment

During any period of statutory holiday, a worker is entitled to be paid at the rate of a ‘week’s pay’ for each week of holiday.

For further information, see Practice Note: Holiday pay.

Regulation 16 of the Working Time Regulations 1998 (WTR 1998), SI 1998/1833 provides that sections 221–224 of the Employment Rights Act 1996 (ERA 1996) apply for the purposes of calculating a week’s pay for each week of leave.

The ‘calculation date’ must be read as ‘the first day of the period of leave in question’, therefore, the calculation may differ depending on whether the employee takes the holiday she accrues during maternity leave:

  1. during her maternity leave, or

  2. some time after she returns to work

Different methods of calculating statutory holiday pay apply,

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