Long Term Sick Legal Question

getmore4less

ILW wrote: »

It is generosity using other peoples (taxpayers) money.

I worked for a company that was 5 years old and introduced service days

1 day extra for every 2 years over 5 up to 3 extra days.

what they forgot was we had 12+ years service from a TUPE transfer and qualified immediately.


Plenty of compnaies out there that offer more than statutory holidays.

getmore4less

Uncertain wrote: »

But they can have a clause saying that you lose some or all of the EXTRA holiday if you take more than a certain amount of sick leave.

The problem is this policy apears to discriminate against those that are sick.

From the information given the OP has lost all 11 of their contractual holiday for about 4months off sick.

An employee that only worked 2/3 of the holiday year would probably get 2/3 of the contactual extra holiday

exact wording and how that can be appllied within the law nees further analysis.

Uncertain

getmore4less wrote: »

The problem is this policy apears to discriminate against those that are sick.

From the information given the OP has lost all 11 of their contractual holiday for about 4months off sick.

An employee that only worked 2/3 of the holiday year would probably get 2/3 of the contactual extra holiday

exact wording and how that can be appllied within the law nees further analysis.

I take your point but I don't think there is any legal requirement for it to be pro rata as you suggest.

If I'm right then whatever formula is laid down in the contract / policy / handbook or whatever applies.

Remember, an employer can discriminate in any way they like EXCEPT for those reasons proscribed by law.

mariefab

The calculations below are based on the assumption that you were off sick for 20 weeks and that 4 of the 7 bank/public holidays fell during that time.

Holiday entitlement for the 32 working weeks.
35 / 52 X 32 = 21.54

Holiday entitlement for the 20 off sick weeks.
(Since Stringer you continue to accrue holiday leave while off sick at least at the statutory minimum level.)
28 / 52 X 20 = 10.77

Therefore, total holiday entitlement for the year = 32.31 days.

So, unless you've already taken 11 days holiday this year, they are wrong.
The most likely explanation for this is that the company policy in your OP hasn't been reconsidered in the last couple of years because it fails to take into account the implications of the Stringer case.

Uncertain

mariefab wrote: »

The calculations below are based on the assumption that you were off sick for 20 weeks and that 4 of the 7 bank/public holidays fell during that time.

Holiday entitlement for the 32 working weeks.
35 / 52 X 32 = 21.54

Holiday entitlement for the 20 off sick weeks.
(Since Stringer you continue to accrue holiday leave while off sick at least at the statutory minimum level.)
28 / 52 X 20 = 10.77

Therefore, total holiday entitlement for the year = 32.31 days.

So, unless you've already taken 11 days holiday this year, they are wrong.
The most likely explanation for this is that the company policy in your OP hasn't been reconsidered in the last couple of years because it fails to take into account the implications of the Stringer case.

Sorry but this is totally wrong!

As I keep trying to explain, the "Stringer" case only applies to the OP's statutory holiday entitlement (i.e 28 days per year). The firm can apply whatever rules they like to the additional holiday (11 days) as long as they comply with the contract.

mariefab

I see what you mean now.

The effect of the policy is that if you are of sick for more than 3 months you lose any contractual holiday entitlement above the statutory minimum level.

Thinking about it, it's a good way for the Company to ensure that they don't lose out on account of Stringer.

SarEl

Uncertain wrote: »

Sorry but this is totally wrong!

As I keep trying to explain, the "Stringer" case only applies to the OP's statutory holiday entitlement (i.e 28 days per year). The firm can apply whatever rules they like to the additional holiday (11 days) as long as they comply with the contract.

Yes you are quite correct, and everyone is faling to take that fact into account. Whilst I haven't come across this sort of clause before in a contract (must be a Scottish thing ), now that I have come across one I have to admit to amawzement that I haven't come across it before and I would imagine that a lot of employers south of the border will be most interested in it. In fact, I would bet my bottom dollar that this is a clause inserted as a response to the Stringer judgement (which may explain why the OP didn't know about it, although contractual conditions are not just those in the written statement of main particulars - what the OP is calling their contract - but also includes policies and agreements made by the employer and unions in a host of areas).

And to be honest, whilst I think the Stringer judgement was a good judgement and has helped an awful lot of employees, I have some sympathy for those employers - as in this case - who have much more generous provision that the law requires. Leaving aside the public holidays, 32 days holiday is nearly six and a half weeks. So if someone was absent on long term sickness for the entire leave year (entirely possible where, as with local authorities, sick pay can extend to a year for longer serving officers), then someone can have the whole year off sick and return to work to a further three months holiday entitlement in the next year.

It gets even more complicated if someone is off for a whole year that does not fit neatly into the leave year. Say someone who has not yet taken any holiday goes off half way through the year. They still have an entire years leave to take. They return to work a year later, again half way through the leave year, - with three months leave to take in six months left of the leave year! So having been absent from work, albeit through no fault of their own, for 12 months, they would then be on holiday for three out of the remaining six months.

And of course another way of approaching this for the employer would be to be absolute in their requirements for people who are off sick to notify them of holidays that they take - because whilst this may not be true in this case, we all know that many people on paid long term sickness go off on holiday without telling their employer (which they should in fact do - sickness does not suspend contractual requirements to notify the employer of the intention to take holiday) and thus manage to both have their holiday and accrue the holiday to be taken later.

So whilst it may seem somewhat unfair from a personal point of view if it happens to you, I have to say nboth that the legal position of this clause appears unassailable, and also it does appear to be just and equitable in the circumstances.

getmore4less

I think the problem here is IMO they are not quite in line with the regulations.

They have reduced the allowance to 21+7 BH(Ok with that) but are not substituting the BH that were not taken while sick which I think they need to do to comply with the statutory minimum.

What also seems suspect is the wording suggest that they are prorataing the full allowance which included the statutory which cannot be prorata.
As currently implimented this will produce some anomalies in how much holiday different people get working the same amount of time in the year.

MY guess is that part year workers get the 11 contractual days prorata where as someone sick for 3month or more loses them all, so they are using the loss of contractual to indirectly prorata the statutory.


Wonder what the policy for holiday during maternity says.

SarEl

getmore4less wrote: »

I think the problem here is IMO they are not quite in line with the regulations.

They have reduced the allowance to 21+7 BH(Ok with that) but are not substituting the BH that were not taken while sick which I think they need to do to comply with the statutory minimum.

What also seems suspect is the wording suggest that they are prorataing the full allowance which included the statutory which cannot be prorata.
As currently implimented this will produce some anomalies in how much holiday different people get working the same amount of time in the year.

MY guess is that part year workers get the 11 contractual days prorata where as someone sick for 3month or more loses them all, so they are using the loss of contractual to indirectly prorata the statutory.


Wonder what the policy for holiday during maternity says.

They do not have to substitute public holidays which fall during sickness. There is no legal requirement to do so. If you happen to be sick on a public holiday that your employer normally observes then that is just tough luck. In the same way that you do not get an "extra weekend" if you happen to be sick over a weekend.

Maternity is not sickness - the observation is therefore not relevant to the case.

getmore4less

SarEl wrote: »

They do not have to substitute public holidays which fall during sickness. There is no legal requirement to do so. If you happen to be sick on a public holiday that your employer normally observes then that is just tough luck. In the same way that you do not get an "extra weekend" if you happen to be sick over a weekend.

Maternity is not sickness - the observation is therefore not relevant to the case.

In that case then the statutory accrual for a full year off would be only 20days(21 scotland) if they can offset the BH.