Long Term Sick Legal Question

SarEl

getmore4less wrote: »

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

You should know me beter by now - I comment only on the law and never on maths But that would appear to be correct, and isn't that what the OP said - they have been told it is 21 days? Or have a misremembered that?

SarEl

Ps - yes that is exactly what the OP said - 21 days and no substitute days for bank holidays.

getmore4less

But did the ecj case and subsiquent UK claifications not say that you accrue all statutory days while off sick effectively overrulling the BH don't count.

SarEl

getmore4less wrote: »

But did the ecj case and subsiquent UK claifications not say that you accrue all statutory days while off sick effectively overrulling the BH don't count.

No. Remember that the ruling is not a blanket ruling - it can only tell various countries what they must do within their own rules. So the ruling does not determine what a holiday is, or how much of it you should have. That is left to individual countries to determine. So the ruling only says that holidays accrue during sick leave - it does not determine what those holidays are or how the accrual should be dealt with (so, for example, an employer can choose to pay for the holidays rather than carry them over). These matters are up to individual states to determine what approach best suits them.

What we are talking about here is untaken holiday - people forget that contractuially and legally, if you take holiday whilst off sick, you have still taken holiday! Many people seem to have the peculiar - and quite incorrect - notion that if they take a holiday whilst off sick it doesn't count as holiday. It does. The employer can choose to disregard the fact that someone has taken holiday whilst off sick (if they know about it) but they do not have to. The same is true of bank holidays where the employer would normally take those holidays - the holiday exists whether you are sick or not.

I know of one particular local authority, having been particularly badly stung by a former employee (who was sacked for it, before anyone thinks it is a bright idea) who had repeated eight week sick notes for stress for eight months (until caught!) reported to the doctor, got their sick note, flew off to Spain on holiday, came back for another sick note, flew off to Spain for a holiday...; the local authority now requires weekly sick notes from GP's regardless of how long a person is likely to be off, which an employer is entitled to do - they do not have to accept a sick / fit note for a longer period.

Uncertain

SarEl wrote: »

the local authority now requires weekly sick notes from GP's regardless of how long a person is likely to be off, which an employer is entitled to do - they do not have to accept a sick / fit note for a longer period.

They may be legally entitled to do this (if you say so - I wasn't aware) but if every employer did it then it would create a totally unworkable situation for doctors. They would be totally overloaded

If a doctor genuinely believes the patient needs to be off work for a extended period then is it not better for all concerned if he says so? If the employer is told that the person has been put of work for eight weeks say, then it gives them the opportunity to plan. If they keep receiving weekly notes then the employer has no idea if they will be back next week or not.

Crazy!

SarEl

I agree entirely - but being "stung" for eight months sick pay tends to make employers overreact too. Unfortunately, as we both know, it only takes one or two "bad apples" and everyone else can suffer for it. But legally an employer may put any rules that they want into contractual sick pay schemes - so if that is weekly notes then that is what the rules say and if you want paying you abide by them. I suppose from a local authorities point of view, it protects their staff too - all it takes is one newspaper headline about Council workers on the sick and living it up in Spain on taxpayers money... Well, we know how often this board turns into an assualt on all public sector workers just because "my Aunt Nelly's best friends sister knows a council worker who....."