Equality and Human Rights Commission

The main acts that give you rights during pregnancy and maternity are:

• the Employment Rights Act 1996 
• the Sex Discrimination Act 1975
• the Working Time Regulations 1998

For more information, see Key legislation.

Holiday and additional maternity leave

The law is currently unclear as to whether you should continue to accrue statutory holiday under the Working Time Regulations during additional maternity leave .

A recent case in the Court of Appeal held that, when an employee is absent on sick leave, statutory holiday under the Working Time Regulations does not accrue during these periods (Commissioner for the Inland Revenue v Gray and Ainsworth 2005 EWCA Civ 441). This has cast doubt on whether a woman should continue to accrue holiday under the Working Time Regulations during additional maternity leave.

The Sex Discrimination Act states that it is not unlawful to deprive a woman of any benefit from the terms and conditions of her employment during additional maternity leave (with certain specific exceptions). It is not clear whether this applies to paid holiday accrued under the Working Time Regulations. The situation will hopefully be clarified by case law in future.
 
In the Portuguese case of Gomez v Continental Industrias del Coucho (2004 IRLR 407) Ms Gomez worked in a factory where employees had to take their leave during the summer shutdown period. Ms Gomez's maternity leave spanned this period and her employer did not let her take the leave at another time. The European Court of Justice ruled that she should be able to take her statutory holiday accrued under the Working Time Regulations outside of the summer shutdown. This means that workers who have holidays at fixed times of the year can argue, on the basis of Gomez, that they should be able to take their leave at another time if they miss out on it because of maternity leave. That is, they should be allowed to take their leave before or after they return from maternity leave.

It is still not clear whether this means that women should be allowed to carry over the holiday they have accrued into a new annual leave year, particularly since the Working Time Regulations do not usually allow you to carry over your statutory paid holiday into a new year. However, this is for health and safety reasons (to make sure that everybody takes a minimum amount of holiday each year). Arguably, it should not prevent a woman who has been on maternity leave from carrying over her leave into a new leave year when she returns from maternity leave. The position will hopefully be clarified by future case law.

Employment protection for fathers

It may be unlawful sex discrimination to treat a father unfavourably for reasons associated with his partner’s pregnancy – for example if he is disciplined for expressing health and safety concerns about his pregnant wife’s treatment in the same workplace, or if he is dismissed for taking time off in an emergency to look after his new baby.

See our information on your rights to time off to care for dependents and to take paternity leave.

There is no service requirement for this protection.