Briefing Note for Schools Accrual of statutory annual leave for teachers on Maternity or Adoption leave
1.0 Introduction
This advisory note is necessary because:
• The national changes contained in this advice must be implemented by schools in order to adhere to statutory legislation
• As a result of developments in case law, legislation and the Working Time Regulations (WTR), the Local Government Employers (LGE) have recently provided advice to Authorities on whether teachers taking maternity leave continue to accrue rights to annual leave while they are away, plus a number of related issues. .
• Whilst teachers do not have a contractual entitlement to annual leave, they do have a statutory right under the Working Time Regulations (WTR). Previously this entitlement was 20 days but this is up-dated from time to time so please ensure that you check the most up-to-date entitlement. This is not an additional entitlement to annual leave on top of the current school closure arrangements.
• Education Authorities should ensure that their policies reflect the above principles in order to fulfil their obligations under the WTR.
2.0 Implications of Regulations
For the purposes of establishing annual leave entitlement whilst on maternity leave, a leave year commencing on 1 September, in line with the academic year, has been locally agreed.
The principles are:
· Teachers are entitled to statutory annual leave under the WTR (check the most up-to-date statutory entitlement);
· A teacher who takes maternity leave must be able to take the number of days statutory annual leave at a time outside of her maternity leave. A local authority may not treat any part of the maternity leave period i.e. ordinary maternity leave (OML) or additional maternity leave (AML), as annual leave;
· Annual leave entitlement can be offset by any period of school closure that has taken place in the leave year in question, i.e. both before and after the maternity leave period.
· A teacher will be advised prior to commencing her maternity leave that she has a statutory entitlement to annual leave (and set out the number of days) and that this should be taken either before or after the maternity leave period during school closure periods. The standard letters sent out from your HR provider should cover this. On her return from maternity leave, a teacher must be allowed to take any outstanding leave during term time during that leave year if there are insufficient school closures to accommodate her leave in that leave year.
· Where the return from maternity leave is so close to the end of the leave year that there is not enough time to take all her annual leave entitlement, a teacher must be allowed to carry over any balance of her leave to the following leave year. A teacher can be required to take this during the remaining periods of school closure after the statutory annual leave for that leave year has been accommodated;
· It is not possible for either the teacher or the authority to decide to carry over the annual leave into the next leave year if there is time to take the leave in the current leave year i.e. in school closures or in term time.
· It is anticipated that the number of instances when a teacher has not had, or will not be able to take, their annual leave entitlement in school closure periods, will be few. Please note that a teacher taking adoption leave will be entitled to take their leave in the same way as a teacher on maternity leave.
2.1 When does payment in lieu apply?
Regulation 13(9)(b) of the Working Time Regulations prohibits payment in lieu being made for annual leave that has not been taken, except where employment terminates.
Normally, the only instance therefore, when payment in lieu may be necessary, is if a teacher does not return to her job following maternity leave. A calculation for this is shown below. Regulation 16 states that a worker is entitled to be paid for a period of annual leave at the rate of a week’s pay.
The formula for pay in lieu is set out in the Working Time Regulations, reg. 14 provides:
(A x B) – C
A is the period of leave that the worker is entitled to i.e. number of statutory days
B is the proportion of the leave year which has expired by the termination date
C is the period of leave taken by the worker between the start of the leave year and the termination date
unless a relevant agreement (incorporated collective, workforce or written contract) provides a different amount.
Example
If a teacher started her maternity leave on 1 September, did not return to work, but resigned on 30 April she will be entitled to:
(no of statutory days leave x 242/365) – 0 = XX days’ leave.
2.2 Public holidays
Teachers do not have a contractual entitlement to paid leave on public or bank holidays. Up until recently, the May Day bank holiday was the only bank holiday that fell during term time. For the purposes of annual leave, the May Day bank holiday and Good Friday and Easter Monday (where this falls during term time) will be classed as a school closure which counts against the statutory annual leave entitlement.
2.3 Retrospective Claims
Retrospective claims in respect of untaken annual leave may only be made within 3 months of the date when the exercise of the right should have been permitted or payment should have been made. Advice should be sought from your HR provider. If a teacher wishes to claim outside of this three month period they must have a legitimate reason. If a case was pursued at a tribunal, the claim can be presented in such further period as the tribunal considers reasonable.
3.0 How does it operate?
Examples of how to calculate entitlement
Scenario 1
The teacher starts maternity leave on 1 October and takes OML only.
SEP / OCT / NOV / DEC / JAN / FEB / MAR / APR / MAY / JUN / JUL / AUGOML / OML / OML / OML / OML / OML
School Closures / 1 wk / 2wk
Xmas / 1wk / 2wks**
Easter / 1 wk / 2wks / 4wks
** March or April
The teacher will benefit from up to 9 weeks of closure during Easter, July and August so there will be no additional entitlement to annual leave.
Scenario 2
The teacher starts maternity leave on 1 March and takes OML only.
SEP / OCT / NOV / DEC / JAN / FEB / MAR / APR / MAY / JUN / JUL / AUGOML / OML / OML / OML / OML / OML
School Closures / 1 wk / 2wk
Xmas / 1wk / 2wks**
Easter / 1 wk / 2wks / 4wks
The teacher will already have had the benefit of 4 weeks (20 days) of school closure in October, December and February. There will be an additional entitlement which will be carried over to the next leave year as the teacher is returning on 1 September.
This will be taken following the first statutory days of annual leave entitlement in school closure periods.
Scenario 3
The teacher starts maternity leave on 1 October and takes OML & AML.
Leave Year 1
SEP / OCT / NOV / DEC / JAN / FEB / MAR / APR / MAY / JUN / JUL / AUGOML / OML / OML / OML / OML / OML / AML / AML / AML / AML / AML
School Closures / 1 wk
SC / 2wk
Xmas / 1wk
SC / 2wks**
Easter / 1 wk / 2wks
SC / 4wks SC
Leave Year 2
SEP / OCT / NOV / DEC / JAN / FEB / MAR / APR / MAY / JUN / JUL / AUGAML
School Closures / 1 wk
SC / 2wk
Xmas / 1wk
SC / 2wks**
Easter / 1 wk / 2wks
SC / 4wks
SC
Leave year 1 – the teacher has had no annual leave but has an entitlement to annual leave days which will be carried over to the next leave year on her return from maternity leave. Leave year 2 – the teacher will benefit from 13 weeks of school closure. This will include her statutory entitlement for that leave year (which will be taken in the October, December, February and first 4 days of the April school closure periods) and the statutory entitlement from Leave year 1. She will not be entitled to any additional leave.
Scenario 4
The teacher resigns and does not return at the end of the maternity leave period.
SEP / OCT / NOV / DEC / JAN / FEB / MAR / APR / MAY / JUN / JUL / AUGOML / OML / OML / OML / OML / OML
School Closures / 1 wk
SC / 2wk
Xmas / 1wk
SC / 2wks**
Easter / 1 wk / 2wks
SC / 4wks
SC
The teacher has not worked a full leave year and will be entitled to a pro rated statutory annual leave entitlement (10 months entitlement =20 days2). The teacher will have already had 3 weeks (15 days) in school closure periods (October and December) so 5 days pay in lieu will be due on termination.
A day’s pay for teachers should be calculated as 1/260 of annual salary.
4.0 Key Action points
· Standard letters sent to any teacher taking maternity or adoption leave should advise of their statutory entitlement and that this should be taken either before or after the maternity leave period during school closure.
· The school must use the formula and calculation provided to determine payment.
· Where there is leave to be paid, the school needs to ensure their HR and/or payroll provider are notified of how many days to be paid upon termination of contract.
· Take advice from your HR Pay provider if queries arise.