Legal advice re return from sabbatical

Lois_Lane

My husband was off sick for a year, and at the point when he was fit to return to work, he told his employer that he wanted to go travelling, and offered his resignation. HIs employer refused to accept his resignation and told him to 'go and do what you want to do, and contact us when you get back', implying, although not stating implicitly, that they would keep his job open for him.

DH contacted his employer a week ago to suggest a possible date for him to return to work, however now the employer is saying that due to the financial downturn, they can't afford his salary, and if he returned they would have to make someone else redundant - basically using emotional blackmail to discourage him from returning. He also said that he would need to be confident that DH was able to do the job and he would need medical evidence that he is fit to do his job, which he is.

In my opinion, if there isn't a job to return to, they should make DH redundant, or at least dismiss him and pay him notice.

We are in Spain at the moment, so going to the CAB is out of the question, although we have tried contacting them by phone today, without success.

I'd appreciate any advice or opinions about whether we have a case against the employer.

Thanks,

LL

p.s. I can't get online everyday, so I won't respond to answers straightaway, but I will read all responses.

Uncertain

Well it would seem the firm granted him unpaid leave, he is still on the staff and has a right to go back.

If they regard him as sick for that year then they will have to pay him for 28 days statutory leave even assuming his company sick pay has run out. He MIGHT even be able to claim this even if on unpaid leave for the rest of the year due to a recent ruling.

I would try to contact ACAS rather than the CAB. It is normally easiest to get through at 8.00 am (GMT) sharp as it gets very busy.

As you say they are trying emotional blackmail.

jdturk

legally-probably correct

Morally- probably incorrect, they have paid your husbands sick pay I guess for a year and then without getting any work after paying this sick pay your husband was going to resign and they made a mistake in not taking it

Uncertain

jdturk wrote: »

legally-probably correct

Morally- probably incorrect, they have paid your husbands sick pay I guess for a year and then without getting any work after paying this sick pay your husband was going to resign and they made a mistake in not taking it

Providing the sickness was genuine (and I'm sure it was) then the gentleman is entitled to whatever sick pay is included in his contract. It is part of his "package" and if the firm didn't offer company sick pay the same employment budget would allow for higher salaries.

Assuming the firm is of any size (and I would guess it must be) then they have "professional" HR people to deal with this sort of thing. Basically, they have screwed up, so I see no reason not to take the full legal entitlement.

I don't see that morals come into it.

Unless there is a specific clause in his contract, the firm can only request (and not insist) on a medical opinion at their expense.

ceridwen

So I guess what it boils down to is:
- has the employer been given a letter saying "I resign" by your OH?
- has the firm given your OH a letter stating "you're sacked" OR "you're made redundant".

It sounds like no such letters have been done and therefore your OH still has the job - if on an unpaid basis at present.

I would just turn up at work on the re-start day I had decided (complete with a letter from my doctor stating I was "fit for work" to cover myself) and go and find my "slot" to start work. (Having taken the precaution of sending the employer a Recorded Delivery letter notifying them of my return to work date I had decided and that I would have that doctors letter on me.).

The ball is then in their court.

They have to either accept that your husband is re-starting work or make him the one who gets the redundancy they are looking to do. If he is the one who "cops it" for the redundancy - then they will have to pay out the redundancy payout due and give him his salary for his notice period.

I cant quote exact laws on that - but I am sure that will prove to be the legal position.

I have to say that I think your husband could well be the one who gets that redundancy in the event - but at least he will be paid for his notice period (or more likely get PILON) and get his payout.

Of course - your husband may get lucky and go back to work okay and find that he isnt the one who gets the redundancy or that there isnt even a redundancy in prospect for anyone.

Emmzi

depends on the terms of the sabbatical/ \i have worked at places where you have a right to go back,. and others where the company "endeavour|" to keep yours, or a similar, job open, but are not obliged to.

\so. w\hat does the letter confirming the terms of the sabbatical say?

If he hasn't got a confirmation of the terms of the break then he has basically not shown up for a year and is on a sticky wicket.

jdturk

Uncertain wrote: »

Providing the sickness was genuine (and I'm sure it was) then the gentleman is entitled to whatever sick pay is included in his contract. It is part of his "package" and if the firm didn't offer company sick pay the same employment budget would allow for higher salaries.

Assuming the firm is of any size (and I would guess it must be) then they have "professional" HR people to deal with this sort of thing. Basically, they have screwed up, so I see no reason not to take the full legal entitlement.

I don't see that morals come into it.

Unless there is a specific clause in his contract, the firm can only request (and not insist) on a medical opinion at their expense.

I don't actually believe that point you keep bringing up, if a company didn't have a sick pay scheme it doesn't mean they would be offering higher wages.

My point was that the guy was off sick for a year and then fancied going on a jolly for a year so for 2 years the company have had no work and now he's expecting to go back as if everything was the same. To me especially as the company are on a downturn is morally wrong.....maybe not to other people.

Uncertain

jdturk wrote: »

I don't actually believe that point you keep bringing up, if a company didn't have a sick pay scheme it doesn't mean they would be offering higher wages.

I don't know why a few people on this board find this concept so hard to grasp....

One final try......

Of course they don't have to offer company sick pay just as they can offer whatever salary they like (as long as it is above the minimum wage). I agree no law says "no CSP then you must pay 10% more salary"!!!

However, an employment "package" can include a whole number of "benefits" or it may just be a salary and nothing else. It may for instance include unlimited personal use of a company car, pension benefits and usually includes company sick pay for a certain number of weeks / months of certified illness. When deciding whether to accept a particular job you look at the value to you of the whole "package".

If there is no company sick pay included a prudent person may well choose to take out private insurance. This has a cost and effectively reduces the take home pay by that amount. Or, he can take the chance and have more money each week to spend in the pub. It is his choice.

The company sick pay, just like the insurance, will have certain terms and conditions attached. If he doesn't comply with the terms and condition the company can withhold payment. Ultimately, if they can't agree, it is open to legal challenge and a judge decides who is right.

My point is on this, and the other thread, that if you offer company sick pay then you have to pay it according to the terms and conditions. If you refuse without good reason then it is open to challenge - that's all.

Sorry, OP, much of this relates to a previous debate.

Lois_Lane

Thanks for all your replies - in particular the advice about going to ACAS, I hadn't thought of that and will do so on Monday morning.

Regarding the sick pay issue, OH was paid for the first 3 months of his absence, although contractually he was only entitled to SSP. The 3 months were paid at the discretion of the company and were to honour the fact that he has been there 13 years and previously had an exemplary attendance record. After the first 3 months he only received SSP and hasn't received any income since going on sabbatical.

To clarify, the company he works for is actually a small business employing 8 people plus 2 directors. There are two other people doing the same job as OH, which is in sales, so logically speaking his return should increase income for the company. He generally sold more than his peers. One of his peers has been there for 3 years and has only 2 years until he retires, so if the company is still going by then they will have to replace him.

There was nothing put in writing regarding the sabbatical, however OH has kept in touch with his employers and his boss's last email included the words 'looking forward to your return'.

Thanks again for your help, I'll try to get online again soon.

LL

Uncertain

The small company aspect of this may shift the "moral" position but doesn't change the legal one.

As I said before there is now hard case law regarding the right to paid statutory holiday even where there is no company sick pay or it has run out.

Nearly all HR and employment law websites have articles about it and the far reaching implications.

As you will have gathered from my slightly off topic post above (sorry again) the whole area of "discretionary" sick pay and contractual entitlement to CSP can be a minefield.

At the end of the day we are all given certain legal rights. Those running businesses, however small, are bound by these and other regulations. If this was a large organisation, with an big HR department, that had got themselves in this mess then I would have no hesitation in sticking out for the last shilling. In a small situation only you know what sits comfortably.

jdturk

My point is, is that a business can not have 'perks' such as contractual sick pay and still not pay higher wages. For example what about all the NMW workers that work for companies such as Mcdonalds etc, now correct me if I am wrong but I doubt that these companies will pay more than SSP so in effect for not having this they don't have to increase their wages