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Employers need to be aware of the following facts in relation to sick pay during maternity leave:

·     Don’t treat maternity leave as annual leave.  Annual leave rights are in addition to maternity leave

·     Employees cannot be paid in lieu of their statutory annual leave entitlement, except on termination of their employment.  

·     There is more freedom to deal with contractual annual leave in excess of the minimum statutory entitlement, with regard to, for example, paying in lieu.

·     Employees should not lose out on their holiday entitlement if their maternity leave coincides with the workplace annual shutdown.

·     Statutory annual leave under the Working Time Regulations 1998 accrues during both ordinary maternity leave and additional maternity leave.

·     Employees are entitled to the benefit of all their non-remuneration terms and conditions throughout additional maternity leave as well as ordinary maternity leave. This includes accrual of contractual holiday above the statutory minimum.

·     When planning for maternity absences, the allocation of annual leave should be incorporated.

Although the law is unclear on the subject of carry-over of statutory holiday from one year to the next, where an employee on maternity leave has been unable to take it in the leave year in which it falls due, take into account that good practice and least legal risk would point towards allowing carry-over in these circumstances.