Using annual leave whilst signed off work

VfM4meplse

Perhaps Sar-El would like to comment?

Bev._2

I would welcome any input from Sar-El.

LadyMissA - it's difficult to put "tone of voice" across correctly in text, so you'll have to believe me when i say it - but you can't have read my post fully. Either that or you've just totally misunderstood. I'm not being forced to take holidays whilst on sick .... that was my CO-WORKER, who was quite happy with the arrangement. I >WANT< to take holidays whilst on the sick, as i fear i would lose them.

The reason for this is one year i was signed off work for the whole of December due to whatever it was. I actually had 9 days of my 20 (forgetting the 8 for bank holidays) saved for December which i'd booked well in advance. Obviously i was signed off ... so i got SSP. Did it mean i could have those 9 days plus next years 20 days for the following year? No. I lost my 9 days. That's what i fear happening again.


So yes, i want my days to be used whilst i'm signed off - as i'd like to be paid for them & not 'lose' them, as my employer will say that i will (lose them).

SarEl

VfM4meplse wrote: »

Perhaps Sar-El would like to comment?

She's getting there. Sorry compatriots - boozy evening with the neighbours!

You cannot loose statutory holiday if you are off sick. But you can take holiday whilst off sick in order to be paid full pay during time off - if you want to. This is not a choice for the employer though - it is your choice. If you want to take your holidays then you ay - but as far as statutory holidays go you cannot loose them if you choose not to. There is some legal challemge in the courts as to whether an employer could force leave during periods of sickness - it is not yet case law and cannot be forced.

Uncertain

Bev. wrote: »

The reason for this is one year i was signed off work for the whole of December due to whatever it was. I actually had 9 days of my 20 (forgetting the 8 for bank holidays) saved for December which i'd booked well in advance. Obviously i was signed off ... so i got SSP. Did it mean i could have those 9 days plus next years 20 days for the following year? No. I lost my 9 days. That's what i fear happening again.

Unless I'm misunderstanding what you are saying (or you get considerably more holiday than the 28 day statutory minimum) then I think your employer acted unlawfully.

As explained above you cannot legally lose STATUTORY holiday as a result of being off sick. If you have been unable to take your holiday for this reason by the end of the employer's "holiday year" then they HAVE to carry it over.

If you get more than the 28 days then the employer can apply pretty much whatever rules they like to the additional days.

Unless there is a definitive ruling in a high enough court to set a binding precedent the law remains that the employer cannot force you to take any statutory holiday during sickness if you don't want to. Again they can have what rules they like about any additional days.

Glennn

SarEl wrote: »

She's getting there. Sorry compatriots - boozy evening with the neighbours!

You cannot loose statutory holiday if you are off sick. But you can take holiday whilst off sick in order to be paid full pay during time off - if you want to. This is not a choice for the employer though - it is your choice. If you want to take your holidays then you ay - but as far as statutory holidays go you cannot loose them if you choose not to. There is some legal challemge in the courts as to whether an employer could force leave during periods of sickness - it is not yet case law and cannot be forced.

Hi SarEl,

Do you have a link or something that backs it up (I do believe you but would like it to show at work). I work in payroll and my boss has always told me sickness overides holiday so if someone is off sick they cannot take holiday full stop even if they want to take it to get them back up to full pay. I have always thought this was a bit harsh when an employee wants to do this but figured it was in place to stop companies doing what the OP has stated.

Uncertain

Glennn wrote: »

Hi SarEl,

I work in payroll and my boss has always told me sickness overides holiday so if someone is off sick they cannot take holiday full stop even if they want to take it to get them back up to full pay.

In case SarEl hasn't sobered up yet from her "boozy evening with the neighbours!" perhaps I can help!

There is nothing to stop your company having this policy if they so wish, that is up to them.

Most companies AFAIK prefer to be more flexible as allowing an employee to take holiday during sickness, if they so wish, is normally in the company's best interest as it reduces the total time the person is absent during the year. As stated, the company cannot force the employee to accept this offer.

The link in post 6 covers most of the subject pretty well.

dori2o

Bev. wrote: »

My co-workers boss said he took "legal advice"

In my experience always beware when an employer says this.

My Dads former employer said he had taken legal advice when he sent him his P45 and a letter thanking him for his service with the company once he had been on the sick for 26 weeks. This was completely out of the blue with no warning from the employer that he had decided my Dad was surplus to requirements.

My Dad had worked there 13 years.

No notice pay, no accrued holidays paid, nothing.

6 months later the employer was left with egg on their face, and had to pay out for a further 6 months worth of accrued holidays, and another weeks worth of notice pay as my Dads annual anniversary passed during this 6 months.

There are some employers who really do seek good legal advice, then there are the employers who believe their way of doing things is the right way and that statutory rights don't exist.

Bev._2

Thanks SarEl.

Uncertain wrote: »

Unless I'm misunderstanding what you are saying (or you get considerably more holiday than the 28 day statutory minimum) then I think your employer acted unlawfully.

No you're right - i get 20 days + 8 days bank holiday each year.

It seems then that i lost almost half my allowance for one year, but it's been 3/4/5 years since that episode (i'd have to look at old payslips to see exactly when), so it's a little late now.

You live & learn.

Glennn wrote: »

Hi SarEl,

Do you have a link or something that backs it up

This would be most useful.

It's all well & good being given sound advice (& i want to point out i don't doubt the advice given), but i can see what will happen -

I go in & say ABC is law.
They turn round & say no it isn't, XYZ is law.
We have a disagreement. They say prove it. I say i got told on MSE, they laugh & ask me to prove it.
I say i can't.
XYZ is then carried out & not ABC.

Uncertain wrote: »

There is nothing to stop your company having this policy if they so wish, that is up to them.

I must've clearly misunderstood, because doesn't this go against what SarEl said?

Because SarEl said "YOU (employee, NOT employer) can take holidays whilst on sick". - from this i take it it's the employees choice and NOT the employers.
What i've just understood from what you've just said in reply to Glennn, is the reverse of that.

getmore4less

On the you choose holidays when sick,

In practice the employer can dictate when you take the holidays so could allocate all your holiday outside the sick period so there is none to take while sick.


AS for links if you google, holiday, sick, carry over and other choice words you will find suitable examples.

eg:
http://www.personneltoday.com/articles/2010/02/17/54142/holiday-leave-lost-due-to-illness-should-be-carried-over-to-next-year-tribunal.html

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10034711

http://www.lawsociety.org.uk/productsandservices/practicenotes/holidaysickpay/4467.article

http://www.acas.org.uk/media/pdf/l/j/AL03_1.pdf

SarEl

I am afraid that it isn't as simple as there being a law! That's one of the reasons that there is so much confusion and yet another case windingh it's way through Europe on this whole issue!

The law says that you must be allowed to have at least 28 days leave in a year, and that whilst the employer can fix some of these holidays, you should be able to choose when you take holidays and the employer should not unreasonably refuse that request. The law also permits you to carry over holidays that are untaken if you are off sick and cannot take them - but it does not say that you must do this - only that the employer cannot take them away from you because you are sick. There are then numerous pieces of case law that add to specifics - for example, that if you are on sick leave your contract continues to operate in full, so you cannot simply "go on holiday", but must book holiday in the same way that your world do so if you were not off sick, and these can then be counted as annual leave and not sick days by the employer. So all in all there is no place where there is a definitive statement, and this leaves lots of grey areas and confusion. The intent of the law is that people should not be forced to loose holidays, not that they should not be able to take them if they want to. Which is why the employer cannot currently make you take holidays during sick leave but there is no reason why you cannot choose to do so. Many employers, tbh, would like employees to do so - for obvious reasons. Holidays have to be taken one way or another and there are advantages to them in employees choosing to do so.

The case currently floating around Europe won't do much to lessen the confusion either. It is being argued that holidays are an entitlement to enable workers to recover from the rigours of work - not "the rigours of being off sick" - and that therefore people who are long term sick should not be able to accrue holidays indefinitely. Goodness knows where that one will end up, but it is likley to just add more confusion and grey areas.