Employer Sickness & Annual Leave Issue

[theblackkat]

Hi,

 

Last week, I was diagnosed with a serious medical condition which is affecting my brain and ability to walk, it also causes severe pain which comes and goes. I am currently awaiting further tests. The doctor signed me off until Friday 21st March 2014 seeing as I had annual leave booked this week anyway and have had this booked for months. I haven't gone on holiday anywhere, just stayed at home to relax as much as possible and recover as much as I can before returning.

 

Yesterday, my employer rang me to see how I was getting on and if I will be returning after my annual leave. I explained that the pain was still quite bad and the brain and mobility issues remain, and will remain until my condition is treated if it can be at all. I will be seeing my doctor today.

 

My employer then said that if I am signed off after my annual leave, this will leave me "in a sticky situation" as it will go down as 2 periods of absence. I understand completely that this would be counted as 2 periods of absence, which I have no issues with. However, my employer said that if I am signed off again then the doctors letter must be dated from the 21/3/14 so it runs as one absence and my holidays will be cancelled and returned to me. I did not agree to this. The employers reason behind this is that they have a 2 absences and then it's a disciplinary procedure.

 

I called ACAS right away and they said that the employer cannot cancel my annual leave unless I agree to it. They added that they can certainly not call me while I am on my annual leave to tell me that it will be cancelled, as the employer has to give notice of double the time of the leave to cancel it without my authorisation. ACAS have also said that my condition could be classed as a disability and, if they chose to invite me to a disciplinary, it could leave my employer with a few problems if they fail to take anything to do with my illness into account.

 

This is leaving me worried sick. I am not ready to go back to work and I do not want to cancel the leave I have taken, nor do I want to be "invited" to a disciplinary procedure! What else can I do here?

[ssparks2003]

Sorry, but why don't you want your emplyer to give you back a weeks holiday that you could use later in the year? am i missing the point?

[honeybee13]

Hi,

 

Last week, I was diagnosed with a serious medical condition which is affecting my brain and ability to walk, it also causes severe pain which comes and goes. I am currently awaiting further tests. The doctor signed me off until Friday 21st March 2014 seeing as I had annual leave booked this week anyway and have had this booked for months. I haven't gone on holiday anywhere, just stayed at home to relax as much as possible and recover as much as I can before returning.

 

Yesterday, my employer rang me to see how I was getting on and if I will be returning after my annual leave. I explained that the pain was still quite bad and the brain and mobility issues remain, and will remain until my condition is treated if it can be at all. I will be seeing my doctor today.

 

My employer then said that if I am signed off after my annual leave, this will leave me "in a sticky situation" as it will go down as 2 periods of absence. I understand completely that this would be counted as 2 periods of absence, which I have no issues with. However, my employer said that if I am signed off again then the doctors letter must be dated from the 21/3/14 so it runs as one absence and my holidays will be cancelled and returned to me. I did not agree to this. The employers reason behind this is that they have a 2 absences and then it's a disciplinary procedure.

 

I called ACAS right away and they said that the employer cannot cancel my annual leave unless I agree to it. They added that they can certainly not call me while I am on my annual leave to tell me that it will be cancelled, as the employer has to give notice of double the time of the leave to cancel it without my authorisation. ACAS have also said that my condition could be classed as a disability and, if they chose to invite me to a disciplinary, it could leave my employer with a few problems if they fail to take anything to do with my illness into account.

 

This is leaving me worried sick. I am not ready to go back to work and I do not want to cancel the leave I have taken, nor do I want to be "invited" to a disciplinary procedure! What else can I do here?

 

Hello and welcome to CAG. I'm sorry to hear of your problems.

 

Do you have a copy of your employment contract to hand please? It might help us to advise you.

 

I'm not an employment expert and the forum guys will correct me if I'm wrong here, but I don't read this as pessimistically as ACAS. The guys should be along later with advice for you.

 

Some companies let you reclaim holiday if it turns out that you were ill for the duration. You say that they have suggested cancelling your holiday and returning it to you. Are you sure this isn't what they've put to you? If this is the case, then your sick notes would need to be consecutive, as HR have said, so that you weren't on holiday at any time.

 

Periods of illness being counted is always a concern. This might be mitigated in your case if your diagnosis puts you in the group of peope who are covered under disability law. Are you prepared to tell us what your condition is and is it likely to last more than a year please?

 

My best, HB

[honeybee13]

Crossed posts with ssparks, sorry about that. We agree though.

 

HB

[theblackkat]

Hi,

 

I understand why most would like the annual leave given back to them. However, my employer pays nothing, a big fat NOTHING, when you're sick, so any money that I can get when I'm sick is welcome.

 

My condition involves restricted blood flow to my brain, which is causing constant lightheadedness, difficulty walking and extreme pain. If it can be treated, I foresee it lasting at least 10 - 12 months.

[Grotesque]

No occupational sick pay?

[Sidewinder]

Hi,

 

If it can be treated, I foresee it lasting at least 10 - 12 months.

 

So far, what you have been told by ACAS is correct. You would be entitled to postpone your annual leave if you are sick, but if you choose not to, the employer cannot force this - unless of course they are willing to pay you sick pay - and as that seems unlikely, any cancellation of holiday and changing this to unpaid absence would be unlawful.

 

You comment above is crucial, but it is not what YOU foresee, but must be based on qualified medical opinion. The Equality Act may well apply here, but only after a qualified diagnosis and a more accurate prognosis. To be classed as having a 'disability' under the EA, you must have a long-term condition which affects your ability to carry out day to day activities, and which is likely to last 12 months or more. In those circumstances your employer is required to consider 'reasonable adjustments' which might enable you to continue work in some capacity. this may be a change of role, allowing more flexibility around breaks in order to take medication, improved workstation - but most importantly for your circumstances at present, special consideration should be given in terms of measuring 'sickness' absence. The normal trigger points for disciplinary action would need to be reviewed and thresholds changed for any absences which result from the 'disability', and an employer who does not make allowances for such absences may well be guilty of discrimination.

 

So - you need that diagnosis in writing, and a qualified opinion as to how long the condition may case a negative effect on your day to day activities, including work. Providing that this qualifies you as having a 'disability' then you will benefit from additional protection.

 

I would be putting the employer on notice that 1. You do not wish to have your paid leave cancelled unless the company are willing to pay occupational sick pay, and 2. That as your condition is likely to fall within the definition of a disability in accordance with the Equality Act, that you need to discuss what reasonable adjustments might be considered in order to allow a more speedy return to work, and that you do not consider that absence caused by a disability should be measured in the same way as for other staff for disciplinary purposes.

 

Having said that - an 'all guns blazing' approach may well not be appropriate, but a gentle reminder that there may be some protection afforded by disability legislation might help your situation.

 

Just remember that above all else it is in everybody's interest that you should be allowed to recover without fear of losing your job on top of the worry of your illness.

[theblackkat]

Hi,

 

Sorry, when I say "I foresee", I mean that given the waiting time for tests and treatment, I foresee it lasting 10 - 12 months before anything starts to look up if it does at all. So, I'll be in for a long wait.