Loss of pay/holidays over accident at work

fonesolo

Hi all,
hoping someone might help out here. I work for a small company. In aug' '09 the day before my holidays were due to start I had an accident at work which left me with four fractures in my arm. I had to cancel my trip abroad, also my wife's. Couldn't get any refund for our trip as we were less than the 48hour window of opportunity to cancel. My company said they would cover the costs that we lost. After reminding them 3 times they still haven't paid up. They paid me full pay until my return to work but took my holidays of me without my agreement. I had a few days booked in early December and they wanted these back as well. I managed to keep these on the basis they were booked before the accident occurred but the few days I still had outstanding to take off, they took off me as well. My point is , I think they have acted illegally. It's got to the stupid stage now, I don't know if they're going to try & take next years holidays off me if they can take this years so easily? I've looked at .government web sites including acas, but they don't seem to cover this topic. Help!!!:mad::mad::mad:

NJW69

It will be too late now but you could have claimed for your holiday on your travel insurance if you provided a medical certificate or letter. There has been a recent ruling I think that has determined that you cannot loose your holiday whilst you are off sick and can carry it over into the next year. I can't find it at the moment but I'm sure there will be someone else who can.

NJW69

From Osbourne Clarke website

20 January 2009: The ECJ decision handed down today in Stringer & Others-v- HMRC (previously known as Inland Revenue -v- Ainsworth & Others) means holiday pay will now accrue during sick leave says European law firm Osborne Clarke.
The long – awaited decision has been combined with that in the German case on the same issue of Schultz-Hoff v Deutsche Rentenversicherung Bund. In essence and in accordance with the European Directive on working time, employers should now allow workers to continue accruing their minimum statutory holiday entitlement during any sick leave period.
National laws may prevent an employee taking this leave during that period (although the Working Time Regulations 1998 do not currently contain any express prohibition in this respect). Employees unable to take such leave should be allowed to take this accrued holiday on their return to work or be paid in lieu where the relationship has ended prior to any return. Although inconsistent with the Working Time Regulations 1998, the decision indicates that this will apply even where the accrued holiday relates to an earlier leave year.
Christine Bradbury, senior associate, Osborne Clarke said:
"This decision means that employers should allow employees to continue accruing their minimum statutory holiday entitlement whilst they are off sick. However, contractual holiday may continue to be reduced if the employment contract allows for such reductions.
This decision has important implications for the Working Time Regulations in the UK, which currently do not permit the carrying forward of annual leave entitlement from one year to the next. The case will now be remitted back to the House of Lords, and we must wait to see how this will be incorporated into UK law."
Background
This long-running case considered whether employees who are absent on sick leave should continue to accrue holiday entitlement whilst off sick. The Employment Tribunal and the Employment Appeal Tribunal held that the employees who were off sick for more than a year, were entitled to accrue and be paid for their statutory minimum annual leave entitlement. The Court of Appeal reversed this decision and it has been appealed further to the House of Lords, who referred questions on the interpretation of the Working Time Directive to the ECJ.
The Advocate General gave her opinion in January 2008 as a preliminary to the full ruling by the ECJ, recommending that the ECJ find that workers who are absent on sick leave should still accrue entitlement to minimum annual leave as provided for under the Working Time Directive. However, she stated that a worker should not be able to take, or receive payment for, annual leave whilst off sick. The Advocate General further indicated in her opinion to the Schultz-Hoff case that employees in these circumstances should be able to take the annual leave on their return to work (or be paid in lieu where they are dismissed), even if that leave has accrued from a previous leave year.
The European Court of Justice decision
Not surprisingly the ECJ has followed the Advocate-General's reasoning.
It found that:
• whilst individual Member States are not precluded from stipulating that workers on sick leave are not entitled to take paid statutory annual leave during that sick leave period, this is provided that the worker can take the leave at another time;
• a worker's right to paid annual leave will continue to accrue and cannot be extinguished at the end of the leave year where the worker has been absent on sick leave for the whole or part of the leave year, or where the worker's incapacity continues up to the end of the employment relationship (i.e. in circumstances where the worker has not be able to take the accrued leave as he has not returned to work);
• where the employment relationship ends, workers will be entitled to a payment in lieu of accrued but untaken annual leave at their normal salary rate.

fonesolo

Cheers NJW69, thanks for finding that for me, its a great help. Basically, when the plaster came off I still wasn't fit for work, so me and the mrs went away for 2 weeks which they knew about, so they're using it against me. I was gonna turn a blind eye to it until I found they had withdrawn all of my other entitlement, and thats whats getting under my skin.

NJW69

I do think you have a responsibility to let your employer know if you are going away so if you didn't that may be why they are now acting the way they are.

Anihilator

fonesolo wrote: »

Cheers NJW69, thanks for finding that for me, its a great help. Basically, when the plaster came off I still wasn't fit for work, so me and the mrs went away for 2 weeks which they knew about, so they're using it against me. I was gonna turn a blind eye to it until I found they had withdrawn all of my other entitlement, and thats whats getting under my skin.

I would suggest its reasonable that if a person is being paid occupational sickleave and is still fit to take a 2 week holiday that this be holiday instead of sick pay.

You pulled a fast one and I would imagine legally both of you will have an argument here.

Did you have a sick note for these 2 weeks. what sort of work do you do?

Were they neglient in any way regarding the accident?

As for the holiday costs. Travel insurance or small courts/injurt claim if there is neglience in the accident.

Clark80

Just to be sure: You had an accident and went off sick and had a 2 week holiday and had full pay until you returned? For this they took your holiday entitlement? How many days were you paid full pay and how many days entitlement did they take?