Tribunal settlement ring-fences public holiday entitlement for NHS workers returning from maternity leave

Chartered Society of Physiotherapy member wins public holiday entitlement settlement.

A tribunal settlement in favour of a physiotherapist who was denied 10 days of public holiday entitlement after returning from maternity leave will see the Department of Health, Social Services and Public Safety in Northern Ireland amend its policies.

Thirty three year old physiotherapist Niamh McDaid, from Draperstown, had been employed by the Western Health and Social Care Trust for nine years when in May 2013, she took maternity leave after the birth of her second child.

On returning from maternity leave a year later, she was notified by the Trust that she would not be allowed to take leave for the ten public holidays to which she was legally entitled and that had occurred during her absence. Mrs McDaid’s contract of employment stated that she was entitled to 29 days’ leave plus 10 public holidays each year – standard terms which should still have applied during her maternity leave.

With the support of her trade union, the Chartered Society of Physiotherapy (CSP) and its lawyers, Thompsons NI Solicitors, Mrs McDaid submitted a grievance to the Trust with a request for her entitlement to be reinstated on the grounds of unlawful maternity discrimination. This was rejected by the Trust both at an initial workplace grievance hearing on the 18th June 2014 and again at an appeal on the 22nd October 2014.

Mrs McDaid, with support from Thompsons NI and the CSP then escalated her case to an Industrial Tribunal hearing. The Trust however agreed to a settlement on the 17th June 2015 – the day the tribunal hearing was scheduled to take place – where it admitted that Mrs McDaid did have a legal entitlement to the 10 public holidays and that they had unlawfully discriminated against her on maternity grounds.

As part of the settlement the CSP also secured a commitment from the Department of Health, Social Services and Public Safety that it would amend its policies so that all NHS employees in Northern Ireland who are on maternity leave would have the right, on their return to work, to the public holiday entitlement which accrued during their absence.

Claire Ronald of the CSP said: “This ruling has implications for NHS employees beyond Northern Ireland. The NHS in Scotland changed its policies on public holiday entitlement during maternity leave in 2012, however our research suggests, and Mrs McDaid’s case illustrates, a piece-meal approach across the NHS to ensuring women on maternity leave receive their proper public holiday entitlement.

“We’re pleased to have achieved this outcome on behalf of our member but are looking now to Trusts across the UK to update their policies and practices to ensure workers’ contracts are upheld without the threat of a Tribunal.”

Employment rights specialist Paul Upson of Thompsons NI Solicitors said: “Employees on maternity leave are entitled to benefit from all of the terms and conditions as outlined in their contract, aside from their usual salary which is replaced by maternity pay.

“In this instance, by bringing the Trust in question to account for its unlawful discrimination, we have ensured that all NHS employees in Northern Ireland on maternity leave will now receive an additional allocation of up to ten public holidays. We hope that this change in Northern Ireland will set in play the necessary mechanisms to ensure staff throughout the NHS will receive their entitlement to public holidays whilst on maternity leave.

Mrs McDaid said: “I’m pleased that I stood my ground in this case, particularly because of the positive changes that will hopefully be felt by other NHS employees in similar situations. I’m grateful for the support of the CSP and for Thompsons NI Solicitors’ expert advice throughout.”