Leave left over - not allowed to carry over but cant take it

[Deleted User]

getmore4less wrote: »

She needs to remind the person making the refusal that they have to allow the holiday before the end of the holiday year so better start planning now how they plan to cover those days thats their job/problem not hers.

Is this NHS

Remember she accrues holidays while sick so does not loose any of the annual allowance.

Yes. NHS it is.

[Deleted User]

samwich1979 wrote: »

I work in the NHS and im telling you that not being allowed to take over annual leave when you have been off sick is utter rubbish.

I was off sick for 6 months this year which went past April and i got my full 3 weeks holiday back on top of this years annual leave to use.

Your wife needs to be firm with them, it is not her fault they have staffing problems, she can take her annual leave when she wants as long as it is far enough in advance and there are not more staff off than required to run the department.

It doesnt run out until April next year so surely they cant say there is nowhere to fit 7 day in 3 months!!

The joys of working for the NHS eh?!

Yes. good point. If you're off sick the last few months of the year then theres no way to take all your leave....

[Deleted User]

samwich1979 wrote: »

Well the hospital i work in lets the staff choose their holidays when they want them and then they either get given those dates or not depending on how many people are off that week.
I was not saying they can just take it and the department has to deal with it!

We also get many opportunities to take short notice days off if the department is quiet.

Never heard of having to book them all in advance, it just does not work in my opinion and this is perhaps why the OP's wife has ended up with this problem.

AGAIN it is the problem of the workplace managers to sort this problem and his wife needs to tell them if they cannot grant her annual leave between now and April she will take it to the union(providing she is in one) and make sure she gets it taken over to the next years entitlement.

Like someone said - staffing problems which is why its all booked in advance. Strange.

Thats just it. No plans for hols between now and april but wife certainly doesnt want to work for free for those days and lose them.

[Deleted User]

SarEl wrote: »

You may not have heard of it being done like this. Your hospital may not do it like this. The fact is that the OP is describing a place were it does happen like this! Because it has. You did say that she can take her leave when she wants provided she gives enough notice - she can't, the law says she can't, and that is the problem the OP is asking about.

No. pretty much anytime between now and april is fine. flexible.

[Deleted User]

zzzLazyDaisy wrote: »

Just to throw an additional wrinkle into the mix....

Following the Stringer case, if an employee is unable to take statutory holiday due to sick leave, those holiday days can be carried forward.

Summary of the rules re holiday entitlement here (scroll right down to the last para if you wish to skip all the case law etc)

http://www.nhsemployers.org/EMPLOYMENTPOLICYANDPRACTICE/UKEMPLOYMENTPRACTICE/Pages/AccrualofStatutoryAnnualLeaveonLongtermSickLeave.aspx

Edit - given that this is advice produced specifically for NHS employers, it would be reasonable to suppose that OP's HR dept should be aware of it.....

nice one lol

zzzLazyDaisy

[quote=[Deleted User];57862035]Like someone said - staffing problems which is why its all booked in advance. Strange.

Thats just it. No plans for hols between now and april but wife certainly doesnt want to work for free for those days and lose them.[/QUOTE]

Okay, well from a pragmatic perspective, if the employer continues to play silly beggars, it would be worth showing HR the NHS guidance. Or even better, if she is in a union, giving the union rep a copy of the guidance and getting them to fight her corner. In fact if she is in a union, she should be talking to them now about the problem.

As an absolute last resort - IF we are talking about statutory holiday entitlement - if the employer steadfastly refuses to allow her to take her outstanding holidays, or to allow her to carry them over, she can make a complaint to an Employment Tribunal against the employer for failing to comply with the WTR. The tribunal has the power to award make recommendations to the employer, and/or award compensation for the lost days. But I would seriously hope that the matter can be resolved before it gets that far.

If the missing holidays are contractual (ie over and above the statutory 5.6 weeks for full timers, including bank holidays) then it is entirely down to what the contract/employee handbook says about what happens if holidays cannot be taken owing to staffing requirements. This is the NHS, I would be surprised if this is not covered in some collective agreement.

SarEl

zzzLazyDaisy wrote: »

Okay, well from a pragmatic perspective, if the employer continues to play silly beggars, it would be worth showing HR the NHS guidance. Or even better, if she is in a union, giving the union rep a copy of the guidance and getting them to fight her corner. In fact if she is in a union, she should be talking to them now about the problem.

As an absolute last resort - IF we are talking about statutory holiday entitlement - if the employer steadfastly refuses to allow her to take her outstanding holidays, or to allow her to carry them over, she can make a complaint to an Employment Tribunal against the employer for failing to comply with the WTR. The tribunal has the power to award make recommendations to the employer, and/or award compensation for the lost days. But I would seriously hope that the matter can be resolved before it gets that far.

If the missing holidays are contractual (ie over and above the statutory 5.6 weeks for full timers, including bank holidays) then it is entirely down to what the contract/employee handbook says about what happens if holidays cannot be taken owing to staffing requirements. This is the NHS, I would be surprised if this is not covered in some collective agreement.

I would certainly agree - I am still somewhat benused at an NHS employer taking a line like this, legally warranted or not. It is most unusual. I think that throwing it back at the employer, if all else fails, and saying "when can I take them then" would provide the best evidential base on either count, that it is the employers decision that they can't be taken and not the employees.

In terms of the case law, there are subsequent cases in UK higher courts that add to the body of case law on this matter, and one from the ECJ. Can't recall the cases off the top of my head (I think one was Shah v someone in West Yorkshire!) and I find retirement lessens the appeal of reading it unless it is new and really exciting!. But they revolve around what was a slightly grey area (although to be honest, I don't think it was grey at all) around exactly this issue. The original rulings all applied to long term sickness which left a question around short term illness.

Clearly, if someone falls ill in June for a week or so and coinciding with their booked holiday, and then claims they can't take their leave for the rest of a leave year that ends on December or March, there are questions to be asked! Annual leave is allocated for a reason (to permit workers the time to recuperate from working), and the law should neither encourage them to stockpile it, nor permit employers a way around giving them their holiday time. So, and I forget the exact wording without looking it up, the rulings introduced another version of "reasonable" - that it would not be possible to take the holiday during the current leave year.

As a slight aside, because I keep mentioing it everywhere it is at all relevant, anyone on long term sick who is in fact stockpiling holiday should give serious consideration to claiming it unless they are still on company sick pay. The ECJ is on a knife edge in rolling back some of the wider implications of these earlier rulings of theirs, which have introduced elements which they did not anticipate or count on. In particular, a decision to limit the amount of time that leave can be carried over for before it is lost is very likely. Employers will jump on this one immediately, and there is no UK law which prevents them from doing so because the current "it rolls forward for ever" is not actually stipulated in law. It exists in the absence of anything that says it doesn't.

zzzLazyDaisy

Hi SarEl I think there has already been a german case that says there is a 15 month backstop for claiming untaken holidays due to long term sick leave - but it probably revolved around the particular facts of that case. I haven't really taken much notice of it as I only have one client now that I've kept for historical reasons - and I'd never let them let things get that far anyway

SarEl

zzzLazyDaisy wrote: »

Hi SarEl I think there has already been a german case that says there is a 15 month backstop for claiming untaken holidays due to long term sick leave - but it probably revolved around the particular facts of that case. I haven't really taken much notice of it as I only have one client now that I've kept for historical reasons - and I'd never let them let things get that far anyway

There has, but it has no wider authority because the specific case related to the terms of a collective bargain. I keep my eye on new ECJ rulings because I haven't currently got any clients, but I have an interest in two specific aspects of law: one of which can't be claimed until someone is dismissed between 12 and 24 months (I am sure you will know what I am looking for); and one which hasn't yet been introduced but will be, and I am looking for a specific type of clearly winnable case with a poor and non-union claimant!!! I am sure you can guess that one too.

zzzLazyDaisy

OOOOOOOHHHH!!! I can't wait!!!!

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