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Claiming holiday pay for long term sickness absence.

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Hi all,

 

Well running out of options as I've been off work for 18 months and no sign of NHS completing treatment anytime soon. Reading the CAG, I've found I'm accruing holiday pay. I've not been told of this or approached by anyone, so I didn't really know till now.....18 months on.

Can I claim the holiday as a payment? Have I lost the previous years entitlement? I'm seriously running low on funds and I'm looking at swapping the mortgage over to an interest only its that bad. Along with the prospect of being left unemployed, Im really at my wits end.

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Hello there.

 

I think you mentioned on your other thread that you have a union. Are they able to help with this? It sounds as if you've found the forum stikky about this?

 

HB


Illegitimi non carborundum

 

 

 

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It sounds as if you've found the forum stikky about this?

 

HB

No just read a few threads. Have you a link? :)

 

*edit* just found it

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Hello there.

 

I think you mentioned on your other thread that you have a union. Are they able to help with this? It sounds as if you've found the forum stikky about this?

 

HB

 

Ah! This just reiterates the points I've already found.

 

I want ed to know if I can claim for all the holiday I've missed or just within the financial year? Will it be as holiday or cash? I'm still employed, will it be viable to make a claim whilst I'm still on the sick?

 

Many thanks 8)

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I guess no one knows on here, so I'll leave this for anyone in my situation, I'm amazed at how little there is to be found on this subject, even thought I'm actually living it.

Well after a days worth of research, I've found unclaimed holiday pay it can be paid up to 2 years prior to first absence. Not sure if it can be claimed whilst still employed (on the sick). I will contact my HR department and let you all know when they have made a decision.

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Holiday only becomes owing in this situation upon your return to work (in which case you are entitled to the holiday itself) or upon termination of employment (where you are entitled to pay in lieu).

 

The only way you can secure pay whilst still on sick leave is by way of a relevant agreement with your employer.

 

Arguably this is limited to a carryover period of 15 months prior to the last leave year - so up to 27 months in total.

 

I suspect the reason you cannot find a definitive answer is that this remains a fast changing and uncertain area of law.

  • Confused 1

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Thanks for the info Becky!

Why is could it be 27 months?

Arguably this is limited to a carryover period of 15 months prior to the last leave year - so up to 27 months in total.

It gives me a little more lea way as things are not improving at all, but how would I argue this with the employer when I return, or would they just pay it without question (as in 'is it HR law?')

What would be the likelihood of it being paid whist Im on sick leave?

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There was a German case decided by the EU Courts which implied, although didn't require, a reasonable carryover period, which in that partial instance was 15 months.

 

They HAVE to allow you to take your accrued holiday though. That's settled law. Of course, if you then didn't take it and you were provided with reasonable opportunity to do so, you would lose the leave as you would be at fault!

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They HAVE to allow you to take your accrued holiday though. That's settled law. Of course, if you then didn't take it and you were provided with reasonable opportunity to do so, you would lose the leave as you would be at fault!

 

Hi Becky,

 

This is the odd thing, no one has approached my regarding this from either my employer or from the Union. If I hadn't looked into it ,I'd have never known. What would happen if the sickness continued beyond 27 months? As in, if I didn't have the opportunity to claim it before the time limit.

 

thanks again for the info 8)

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At present, I would imagine they would be obliged to pay you for the full period, but it's a grey area and we don't yet have a definitive answer. Ultimately, if they refused to do so, you would have to challenge it in the courts.

 

There's an article on the Schulte case here - http://www.xperthr.co.uk/editors-choice/ecj-provides-guidance-on-carry-over-of-annual-leave-during-long-term-sick-leave/111293/ which briefly explains that the reason for the 15 month carryover period here was that this was what German domestic law required at the time. The UK has no current carryover provisions in the Working Time Regs, so it's still open to interpretation!

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Court of Appeal rules on sick workers and annual leave

 

25 July 2012

 

ISSUE :

The Court of Appeal has today handed down its decision in the case of NHS Leeds v Larner.

 

The issue for the Court of Appeal to decide was whether or not an employee, who is on sick leave, must make a request to carry forward an entitlement to accrued annual leave into a new leave year.

 

The Court of Appeal held that an employee who is prevented from taking paid annual leave because they were sick is entitled to carry over their untaken annual leave to the next leave year without making a prior request. Where employment is terminated before leave that was carried over could be taken, an employee is entitled to a payment on termination.

 

KEY DATES :

The judgement was handed down to the parties today, 25 July 2012.

 

IMPACT :

The Court of Appeal judgement follows conflicting EAT decisions in Larner and Fraser v Southwest London St George’s Mental Health Trust. It has clarified that the EAT position in Larner is correct: accrued leave carries over to a new leave year automatically.

 

It seems that employers will now be obliged to pay sick employees holiday that has accrued in previous leave years. Unfortunately, the Court of Appeal did not consider whether a time limit can be placed on this. In KHS AG v Winfried Schulte, the ECJ held that a 15 month time limit for using carried over leave is compatible with European law so it is still open for employers to argue that a time limit applies. However, the position on this remains unclear following the Court of Appeal’s decision.

 

A further question mark remains over the difference between the 4 weeks annual leave awarded by European law and the 5.6 weeks annual leave awarded by the Working Time Regulations 1998. The Court of Appeal refused to address this point. However, pending further guidance from the courts, it may be possible to argue that only 4 weeks per leave year carries over.

 

ACTION :

Employers will not welcome this decision and should consider undertaking a review of employees on long term sick as, while they remain on the books, they are continuing to accrue holiday.

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There's an article on the Schulte case here - http://www.xperthr.co.uk/editors-choice/ecj-provides-guidance-on-carry-over-of-annual-leave-during-long-term-sick-leave/111293/ which briefly explains that the reason for the 15 month carryover period here was that this was what German domestic law required at the time.

 

Excellent link. Thank you very much!

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A further question mark remains over the difference between the 4 weeks annual leave awarded by European law and the 5.6 weeks annual leave awarded by the Working Time Regulations 1998. The Court of Appeal refused to address this point. However, pending further guidance from the courts, it may be possible to argue that only 4 weeks per leave year carries over.

This will not make much of a difference to me. Even though I'm an analyst, I still have to work the same hours as the guys on the shop floor and enjoy the same holiday routine. Which is 22 days a year , it works out at 4 weeks with stats as we do 12 hour shifts nights and days, the bear minimum or 4 weeks if you worked a 'normal' 9-5 week.

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Have you calculated if being on benefits is better than being employed.

 

Never have claimed ,never will.

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