Urgent Help Needed Re; Leave Entitlement While On Sick

[The.Shad]

Firstly, apologies if I've posted this in the wrong forum, and secondly I'm sorry if this has already been covered but I couldn't find a definitive answer when searching.

 

Background;

I work for a very large UK company and have been on the sick since August 2010. I have had an operation on my knee and am currently undergoing physio in order to return to work asap (end Nov/beginning Dec).

My holiday entitlement begins on the 1st of my birth month every year, and as my birthday is in January I am due to get my new entitlement on the 1st Jan 2011.

 

My Problems;

As I have been on the sick I still have approx 3 weeks of my holiday allocation remaining for this year, but only have approx 4 weeks left in which to use them. I have been told I can carry 1 week over to next year, which is fine. I have asked if I can sell 1 week back so I don't loose it, however a high manager has told me I can't sell anything back as I've been on long term sick (more than 20 days) and will loose this time/money. According to the manager it is because of EU Legislation.

It has been suggested that I use the time as holidays for recuperation after my operation, in other words; sign off from being sick and go straight into holidays. I'm sure that this isn't allowed and will also give a false representation of people on the sick in the company statistics.

So, my questions are

1. am I entitled to time off?

2. am I entitled to sell my holidays back?

3. does EU Legislation state anything regarding this type of situation, and if so, where can I get a copy?

4. is the manager right to suggest I take the time off for post-op recuperation?

 

Any advice would be greatly received.

Many thanks,

Steve.

[SarEl]

You are entitled to statutory holidays that have accrued whilst on long term sick leave - if you receive more than this contractually then any balance does not have to honoured by the employer, although most would - if for no other reason than they are being careful as this is a new and developing piece of law, and most don't want to end up adorning the front page of "Lawyers Today" as the test case!

 

You are not entitled to sell your holidays back - but the company must either pay you for them or allow them to be carried over if you are unable to take them due to sick leave - however you must ask for them to do so, otherwise you loose them. The EU legislation in question actually says you cannot loose statutory holiday entitlement - not that you must! However, if you will be returning to work soon, as you indicate, the employer certainly can insist that you take the holiday owed after your sick leave and use them up that way - and in fact it would appear to be a sensible solution to enable your knee to fully recover - but only assuming that you have been signed back fit for work. Otherwise, there is nothing to stop you from taking holiday instead of sick leave if you wish to do so - and many people do because the company doesn't give a damn about false representation of numbers of people off sick, but they may indeed have policies for managing sickness which influence your continued employment in the company or redundancy selection procedures - and those are things that you may care about!

[The.Shad]

You are entitled to statutory holidays that have accrued whilst on long term sick leave - if you receive more than this contractually then any balance does not have to honoured by the employer, although most would - if for no other reason than they are being careful as this is a new and developing piece of law, and most don't want to end up adorning the front page of "Lawyers Today" as the test case!

 

You are not entitled to sell your holidays back - but the company must either pay you for them or allow them to be carried over if you are unable to take them due to sick leave - however you must ask for them to do so, otherwise you loose them. The EU legislation in question actually says you cannot loose statutory holiday entitlement - not that you must! However, if you will be returning to work soon, as you indicate, the employer certainly can insist that you take the holiday owed after your sick leave and use them up that way - and in fact it would appear to be a sensible solution to enable your knee to fully recover - but only assuming that you have been signed back fit for work. Otherwise, there is nothing to stop you from taking holiday instead of sick leave if you wish to do so - and many people do because the company doesn't give a damn about false representation of numbers of people off sick, but they may indeed have policies for managing sickness which influence your continued employment in the company or redundancy selection procedures - and those are things that you may care about!

 

Thanks for the swift reply.

I have no problem with taking the time off as holidays, however the business i keen to get me back asap as I am a qualified assessor and they have people who need assessing before the end of the year. They aren't forcing me to come back, but let's just say they would be extremely happy for me to get back to work. Also, the business is very much governed by the seasons and weather, and is coming into it's most busy period when it needs as many peope available as possible.

I guess what I'm asking is; if the business wants me to return to work asap, do they have the right to decline any holidays I request. And if I do return to work, is it reasonable to request that any holidays I haven't used are either carried over or bought back (I realise I will loose some, but something is better than nothing).

[SarEl]

They can decline a holiday request - but then they would be obliged to ensure that the holiday was carried over (the statutory part) because you were unable to take it due to sickness and they are the ones that refused it. There is no requirmenet to buy back holiday - and in fact I think I know what the manager was talking about, but it isn't EU law, it's UK law - they are not permitted to buy back statutory leave, as you are enttled to that leave by law and you cannot be deprived of that right, even with your agreement. However, they will have to compromise one way or the other - allow you to take it or carry it over.

 

You might point the company to Shah v First West Yorkshire - although this is a tribunal case (therefore not case law) this is now the test that is being applied by tribunals as to the correct practice in relation to your situation.

[jackieandwayne]

Just write them a letter, state that you wish to be paid for untaken statutory leave. They have to pay you. And that should be handy for Xmas.

 

Happened to me last year, I didn't even know I was entitled to be paid for untaken stat hols, until something on here caught my eye. I ended up with £1K at the end of November!

 

Good luck.

[SarEl]

Just write them a letter, state that you wish to be paid for untaken statutory leave. They have to pay you. And that should be handy for Xmas.

 

Happened to me last year, I didn't even know I was entitled to be paid for untaken stat hols, until something on here caught my eye. I ended up with £1K at the end of November!

 

Good luck.

 

No they do not. The leave year is not yet completed and the entitlement to be paid for untaken leave is only when the employee continues to be employed but on sick leave to the end of the leave year. If the OP returns to work during the leave year then they are entitled to take the holiday - or to have it carried over because it cannot be taken. If the OP is able to take the leave during the leave year, then the law requires that they do so - employers cannot circumvent the law on statutory leave because the point of it is that people have a legal right to holidays - not to payment for them. If the employer did pay for the leave, the OP would be entitled to make a complaint to a tribunal that they had been deprived of their holiday entitlement! The law is clear - if the OP returns but cannot take the leave owed they are entitled to the employer agreeing to carry it over.

[steve5915]

Can someone advise me as i am in a similar situation i have been off sick since jan 2010 with ME my leave starts on 1st jan and in november 2010 my company agreed to pay me for all my holiday entitlement.However they are now dismising me under ill health (mutual agreement) but this wont happen until end of jan 2011 - as my leave starts again on 1st jan will i be able to claim my leave entitlement again.?

[honeybee13]

Hello Steve and welcome to CAG.

 

I think you'd be better off having your own thread, then we can advise on your specific situation.

 

If you click on the black triangle at the bottom of your post, you can ask the site team to start one for you. Tell them a title for it, if you have one, or they'll think one up for you.

 

HB

[borisbeaver]

Your 2011 leave will be pro-rata'd i.e. 1/12 of your annual entitlement.