Holiday entitlement and sickness

[slateboy]

I have an issue with my employer at the minute that I am in disagreement with them about. Recently I had been off work for nearly 5 months due to an injury which I believe I sustained at work. When I returned to work I enquired as to how many holidays I had left from my entitlement as in my contract I will lose 2 days per each full calender month of absence. I believe I should have lost 8, ie. 4 full months absent times 2 days per month equals 8 days holiday entitlement lost. Yet when I asked I was told I would lose 20. When I asked why I knew the reason for the first 8 but was told the other 12 was because I had taken a holiday during my sickness. My argument is that yes I did go holiday while I was sick, but this holiday was booked well in advance of my absence from work due to sickness and was not taken purely because I was off sick. Secondly my doctor certified me as being unable to work not and being unable to got on holiday and lastly does my employer legally have the right to take holidays from me when I am absent due to illness. Any advice is much appreciated and pointers in any direction for information on my rights would be most welcome.

Thanks

[Ell-enn]

Hi there, can you just clarify if you actually booked the 12 days for your holiday with your employer before you went off sick?

[cal37]

Hi,

 

You can not be sick and on holiday at the same time. Was you paid sick pay while off, were you paid any holiday pay while off, did you get sick and holiday for the same time?

 

If its no to the holiday pay, put a grievance letter in, if its yes you did get sick and holiday for the same time then tell them you will be informing the DWP.

[slateboy]

My holidays were booked in advance. I did not get holiday pay but was getting sick pay. My boss`s attitude is that I was getting paid sick pay so am not entitled to any holidays, yet the company were still claiming SSP from the government.

[cal37]

Its as i thought. You need to write a greavance letter, in the meeting point out that as you were sick and reciving SSP you can not possibly of used your holidays.

 

You are entitled to 24 days paid holiday by law and while you fully except the 8 days lost due to the sickness, you do not except the other 12 days lost.

 

Point out that if you do not get satisfactory result you will take the matter up outside of the company.

[Conniff]

I found this on the CAB site, not as many weeks as you, but I hope it helps as it does explain things well:

 

Q I was off work sick for two weeks, but I’d previously booked the second week off as holiday. Now my employer is saying I’ve got to take it as holiday but I’d like to have it as sick pay and rebook my holiday. Can I do that?

 

This depends on your contract. Regarding holidays, all workers are entitled to four weeks paid holiday a year; this includes agency workers. During your first year of employment your holiday is built up over the year, one twelfth per month (rounded up half a day if necessary). Regarding sick pay, all workers, including agency workers, are entitled to 28 days statutory sick pay (SSP) per year, from the first day of employment.

 

But whether you take sick pay or holiday pay if they clash, as in your case, depends on your contract. If this specifically allows you to take holiday in lieu when you’re off sick while on holiday, you can take holiday at a later stage, and you’ll be classed as off work sick and paid normal sick pay.

 

But if your contract does not specifically allow you to take holiday time in lieu if you’re sick, then you’ll be seen as being on holiday and paid normal holiday pay.

 

Either way, holiday is still accrued while you’re off sick, so even if you’re off sick for a whole year, you still accrue four weeks holiday.

 

If you haven’t got a written contract of employment you need to chase it up with your employer. All employees are entitled to a written statement of terms and conditions of employment after one month of starting work. If you haven’t got one after two months your employer is deemed to be in breach of their obligations and you have the right to apply to an employment tribunal.

 

 

[Conniff]

Having read further, it is not as easy as CAB says above. An employment tribunal said yes, but it went to the court of appeal and a different judgement was given:

 

Have a look at the link.

 

Employees have to earn their holiday entitlement - 05/07/2005

[Goldlady]

Did your employer pay you for the holiday you allegedly took? Or were you one of those fortunate people who still get their wages when on the sick, and not just SSP? We did this with someone who was on the sick for eight weeks - he was just getting SSP but we then paid him two weeks holiday pay in the middle - at his request.

[slateboy]

I am one of those fortunate people who is lucky enough to get full sick pay for six months and then half pay afterwards. My pay docket for the months I was off sick show SSP and then shows SSP offset where the company have paid me my sick pay and then taken back the governments money. By doing this, to me they are saying that I am sick and not on holidays and as far as I am concerned, they cannot touch my already accrued holidays. This then begs the question, if my company are claiming SSP and are saying I am getting holiday pay, surely they defrauding the government are`nt they?

[Goldlady]

I think it is legal to pay holiday pay owed during a period of sickness, as we have done this to help people who are suffering hardship and who are owed holiday pay. However, under normal circumstances would your payslip have shown that you were getting holiday pay rather than your normal wage/salary? (We do this with the payrolls we run - ie show that holiday pay has been paid on the actual payslip). It is OK to offset the SSP as they have done. But if your payslip would normally have shown that you were getting paid holiday pay and has not shown this you might be able to fight this confiscation of your hols:p

[GlasweJen]

Hmmm so they claimed your sick pay and gave it to you as holiday pay? I think this might be a question for the higher powers, try calling ACAS and asking them what they think of this, if you're sure its sick pay you got but your holidays vanished then it may well be fraud on the part of the company (claiming your sick pay and giving it to you as holiday pay) or a breach of the working time directive that outlines holiday entitlement (with holding accrued holiday entitlement).

[slateboy]

There is definitely no mention on any of my pay dockets during my absence of any holiday pay, they are all cleared marked SSP, ie. sick pay. To be totally honest I don`t think it is a company wide fraud conspiracy, just a local manager trying to show he`s a company`s man and saving the company money by way of "stealing" my holidays.

[Goldlady]

Are you sure they are allowed to deduct the 2 days per month you mentioned in your first post? I would have thought that if you were continuously employed by the company that your holiday would still build up even if you were on the sick? I only say this because none of the people I do payrolls for would actually take this into account.

[slateboy]

Yes, it is in my contract. The reason it is there is for long term sickness. Longterm sickness is classed as an absence of 3 or more continuos months absent. As i said in my first posting, this does not bother me as it is clearly in my contract but no-one can show me where the company has the right to reduce my holiday entitlement while I am off sick.

[Ell-enn]

I was thinking the same.... where I work you still accrue holidays while off sick. Our hourly paid factory workers sometimes ask to take holiday days instead of sick leave so they don't lose money (they only get SSP if off sick), but holidays are not deducted if absent.

[Weird Al Yankovic]

I am one of those fortunate people who is lucky enough to get full sick pay for six months and then half pay afterwards.

 

Postie by chance?

 

..

[Weird Al Yankovic]

In any case, the contract of employment and sickness provision is all important. So too is a pre-booked holiday-provided you can prove it as such.

 

Further, you say you were injured at work-do you have proof of this?

 

eg being off work because a forklift truck run over your leg in work is very different to being off work with a broken leg due to playing football in your spare time.

 

Please elaborate about your employment and this circumstance. Otherwise I would not to wish to comment as this is just guess work.

[Weird Al Yankovic]

I was thinking the same.... where I work you still accrue holidays while off sick.

 

Yes, but the OP doesn't work work with you.

 

eg You may get paid breaks, which you think is right and normal, yet the OP does not despite maybe working longer hours.

 

We have to establish basic facts first.

[OrangePrimate]

You might have to look at something else here and check your Companies sickness absence policy, you may be opening a can of worms. Ours (and i know an awful lot of other companies) have in the sickness policy a section on 'your behavour and what is expected of you whilst you are off work sick'

it says that while of work sick you are not expected to go away on holiday, unless it is with prior permission from the company, is for recouperation (sorry cant spell!) with a doctors note recomending the holiday as beneficial/fit to travel.

I suppose the way they look at it, fit to go on holiday....fit to go to work!

 

But if you are lucky enough not to have that disclaimer, then any sickness still accrues holiday time to be taken when return to work and if off sick and covered by a certified sick note, the time cannot be converted into holiday absence (think that can be found on dti website)

[Weird Al Yankovic]

You might have to look at something else here and check your Companies sickness absence policy, you may be opening a can of worms. Ours (and i know an awful lot of other companies) have in the sickness policy a section on 'your behavour and what is expected of you whilst you are off work sick'

it says that while of work sick you are not expected to go away on holiday, unless it is with prior permission from the company, is for recouperation (sorry cant spell!) with a doctors note recomending the holiday as beneficial/fit to travel.

I suppose the way they look at it, fit to go on holiday....fit to go to work!

 

But if you are lucky enough not to have that disclaimer, then any sickness still accrues holiday time to be taken when return to work and if off sick and covered by a certified sick note, the time cannot be converted into holiday absence (think that can be found on dti website)

 

Yes.

 

However, you have given your own employment circumstance, it may not be the same for the OP. We need to know his terms of employment.

 

What is the sickness?

 

Can the company argue that if the OP has had a nervous breakdown and he went on holiday, as he says pre-booked, to the golden, sandy shores of Bali that this would be no more beneficial than spending the same amount of time in a soggy, windy Grimsby?

 

Therefore, sickness is aided by a holiday, but a holiday was needed due to sickness.

 

What if the sickness and holiday coincided with the OP's sister getting married in Acapulco?

 

Does the employer therefore decide what the OP must do when on sick leave/holiday/time off for essential family committments?

[OrangePrimate]

Yes.

 

However, you have given your own employment circumstance, it may not be the same for the OP. We need to know his terms of employment.

Exactly why i suggested the OP check their own sickness absence policy, was giving my own employers policy as an example, as know majority of employers will have this included.

What is the sickness?

We dont know and it is an important factor in the considerations

Can the company argue that if the OP has had a nervous breakdown and he went on holiday, as he says pre-booked, to the golden, sandy shores of Bali that this would be no more beneficial than spending the same amount of time in a soggy, windy Grimsby?

If this is the kind of sickness of course this kind of holiday would be beneficial, but could the company argue that when taking time off work for sickness as having mobility problems due to an injury, that a skiing holiday in the Alps or a trekking holiday in nepal is not exactly beneficial, and if capable of that kind of activity, why are they off sick????

Therefore, sickness is aided by a holiday, but a holiday was needed due to sickness.

 

What if the sickness and holiday coincided with the OP's sister getting married in Acapulco?

Didnt really intend my post to get to this nitty gritty level, and seriously was not having a go at the OP, but was pointing out a consideration, if the above is the case, there obviously shouldnt be a problem, but assume the OP kept their employer informed of their holiday plans?

Does the employer therefore decide what the OP must do when on sick leave/holiday/time off for essential family committments?

Holday and time off for essential family committments are nothing to do with this situation and obviously the employer has no rights over the actions of the employee, but I think the employer has a say in what the employee can and cant do if the employee is away from work on sick leave and they are paying them sick pay, very hard to fight the claim of "you claim to be sick and cant do your job as postman (for instance only!) but you take a 2 week holiday trekking with a backpack" hmmm hard one to justify!!!

And no, i dont work for HR or 'the other side' i am an employee workplace rep, and make sure i look at situations and anticipate arguements from ALL sides.

[Weird Al Yankovic]

An employee workplace rep?

Has proven to me over the years to mean jack.

 

Listen up, 'an employee workplace rep' attempted to defend a colleague of mine who was threatened with the sack for having a pint before his 2-10 shift because a manager drove past the beer garden.

 

The 'employee workplace rep' admitted never having drunk alcohol in his life. How could he mitigate?

 

It was dismissed when the management realised this at the first meeting! (And thought of an ET obviously).

 

How do you know family arrangments have nothing to do with this case?

 

Let the OP post more before jumping to conclusions.

 

Every post, except mine, mean nothing although I do recognise at least some open mind from you.

[slateboy]

I had a groin strain which happened at work, my job involves a lot of manual labour, ie. shifting heavey objects about all day every day. There was no other reason for being off sick other than that and no, no member of my family was away on distant shores getting married.

[OrangePrimate]

An employee workplace rep?

Has proven to me over the years to mean jack.

Thanks for undermining all those reps out there that work hard, sometimes also in their own time, helping their fellow employees.

Listen up, 'an employee workplace rep' attempted to defend a colleague of mine who was threatened with the sack for having a pint before his 2-10 shift because a manager drove past the beer garden.

 

The 'employee workplace rep' admitted never having drunk alcohol in his life. How could he mitigate?

Sorry, missed the relevance here, I havent done half the things that the people i represent have done! and i am sure that any person accused of a crime, rape, murder, theft ect is not going to find a lawyers/solicitor out there that has 'done' the same thing!

It was dismissed when the management realised this at the first meeting! (And thought of an ET obviously).

It would have been dismissed anyway! unless the person came into work rolling drunk.

How do you know family arrangments have nothing to do with this case?

I never said they did. you mentioned about employers having a say in what an employee does when on holiday or on leave for family arrangements ect. i meerly pointed out that your comment ref those circumstances had nothing to do with this case, as this is to do with taking a holiday while being paid to be off sick

Let the OP post more before jumping to conclusions.

dont see anyone jumping to conclusions, just lots of people trying to give advice

Every post, except mine, mean nothing although I do recognise at least some open mind from you.

I am assuming this last comment is said in jest? i dont beleive anyone could be so arrogant as to dismiss all the other posters on this thread, some as we know work in HR and other 'employment' related fields, so would know what they are talking about!.

Sorry slateboy and other posters, didnt wish this to take over the thread and become a slanging match but couldnt let the last comment go!!

 

Slateboy, you would be able to justify going away for a holiday, unless it was to a rodeo training camp or something, and the 'mrs' carried the luggage. but please check your absence policy, just in case.

According to ACAS, you do still accrue holiday whilst off sick, so your company shouldnt be taking even those 2 days per month back from you (unless it is in your contract of employment of course!).

[cal37]

Check your contract.................if there is nothing in there to stop you taking holidays while off sick then put a grievance letter in. There is NOTHING in employment law that stops you going on holiday while off sick.

 

People please note..................a sick note is not a RIGHT to be off work, a company can dismiss you even if you have a sick note,its ONLY an explanation of the reason you are off work.

 

The main thing to always remember if you are going to be off sick is..............

 

Always offer to do any work that you are able to do with your illness, it will protect you if the company were to discipline or dismiss you.

 

For example you like the OP do manual labour and have a groin strain, is to ask the company if they can move you to light duties/office etc etc while you have the injury.Then if they say no, you can do as you wish, without the company having any come back on you.