Employer cancelling annual leave

ValHaller

getmore4less wrote: »

I think you have invented nonexisten punctuation in the sentence
A worker may take leave to which he is entitled under regulation 13(1) on such days as he may elect by giving notice to his employer in accordance with paragraph (3),

It also looks like this does not apply to approved holidays anyway as commented in this post(and I have seen other statements allthough as pointed out by paddedjohn in a later post only sarl ever says this and no backup evidence)
http://forums.moneysavingexpert.com/showpost.php?p=48068217&postcount=7

not sure how sarel get to 2 weeks for aproved from the regulations as written but ties in with your interpretation.

I cut and pasted, hopefully accurately from http://www.legislation.gov.uk/uksi/1998/1833/regulation/15/made and I only added square brackets

I am not sure how sarel reached her conclusion - it ties up with my gut feeling that carefully argued a court would regard cancelling leave as different from refusing it, but different in that without case law, I can only see ambiguity.

If there is a difference between refusing and cancelling leave, WTR makes no provision for cancelling - which makes the drafting ambiguity all the more frustrating because you don't have handles for refusing and cancelling to help sort it out.

The other gut feeling is that once the holiday leave is approved, quite aside from WTR, I think it could be argued to be written into the employment contract - particularly if the employer is empowered to refuse the employee the right to cancel their own leave.

The issue appears beached in the worst place - between an Employment Tribunal and the Civil Courts.

BTW our references to WTD should of course be to WTR. WTD does not illuminate

Ddunn

bryanb wrote: »

Sack you for gross misconduct if they proved you went away on the holiday whilst on sick leave.

Depends what you went on the sick for.

http://www.lge.gov.uk/lge/core/page.do?pageId=5007996

. Does the decision in this case mean that staff can actually go on holiday while they are off sick?
Yes, possibly, depending on where they want to go on holiday and the reasons they have stated for their absence.
Whether a worker is on paid or unpaid sick leave, they should not be prevented from travelling, and possibly going away on holiday. So long as the worker continues to meet the conditions for eligibility and qualification for statutory sick pay (SSP) or occupational sick pay (OSP), the worker must continue to be paid if they travel away from home on holiday, even if that means going abroad. However, as you would expect, an employer can decide to withhold SSP or OSP (depending on what their policy says) if they discover that the worker is undertaking activities that should not be possible given the stated reasons for the sickness absence, for example, going on a rock climbing holiday while off work with back pains.

Policies that have a blanket restriction on workers requesting leave to go on holiday while they are off sick may be at risk of unlawfully discriminating against workers in certain circumstances. For example, workers who have a mental health illness, such as depression, and who qualify as disabled under the Disability Discrimination Act 1995 may benefit from a holiday and it would probably be seen as a reasonable adjustment to permit this. Also, a policy that denies those workers whose country of origin is not the UK the opportunity to travel to visit friends or family in their country of origin during their sick leave may result in indirect race discrimination on the grounds of nationality under the Race Relations Act 1976.

Instead of a general restriction on travel, employers are recommended to have a statement in their annual leave policy that advises workers that they are permitted to travel but if they do “something inconsistent with their stated reasons for sickness absence, or something that worsens their illness or prolongs their absence, the local authority reserves the right to stop statutory sick pay and/or occupational sick pay, and in some cases this may result in disciplinary action".

Checkmate_2

Ddunn wrote: »

Depends what you went on the sick for.

http://www.lge.gov.uk/lge/core/page.do?pageId=5007996

. Does the decision in this case mean that staff can actually go on holiday while they are off sick?
Yes, possibly, depending on where they want to go on holiday and the reasons they have stated for their absence.
Whether a worker is on paid or unpaid sick leave, they should not be prevented from travelling, and possibly going away on holiday. So long as the worker continues to meet the conditions for eligibility and qualification for statutory sick pay (SSP) or occupational sick pay (OSP), the worker must continue to be paid if they travel away from home on holiday, even if that means going abroad. However, as you would expect, an employer can decide to withhold SSP or OSP (depending on what their policy says) if they discover that the worker is undertaking activities that should not be possible given the stated reasons for the sickness absence, for example, going on a rock climbing holiday while off work with back pains.

Policies that have a blanket restriction on workers requesting leave to go on holiday while they are off sick may be at risk of unlawfully discriminating against workers in certain circumstances. For example, workers who have a mental health illness, such as depression, and who qualify as disabled under the Disability Discrimination Act 1995 may benefit from a holiday and it would probably be seen as a reasonable adjustment to permit this. Also, a policy that denies those workers whose country of origin is not the UK the opportunity to travel to visit friends or family in their country of origin during their sick leave may result in indirect race discrimination on the grounds of nationality under the Race Relations Act 1976.

Instead of a general restriction on travel, employers are recommended to have a statement in their annual leave policy that advises workers that they are permitted to travel but if they do “something inconsistent with their stated reasons for sickness absence, or something that worsens their illness or prolongs their absence, the local authority reserves the right to stop statutory sick pay and/or occupational sick pay, and in some cases this may result in disciplinary action".

That's all irrelevant if the employer decides to find a legal but petty reason to dismiss an employee after finding out they've been trying to abuse the sick pay system because they know a bit of law. If you went pointing out this law to me as an employee I'd find every reason to sack you in the future. Don't push your luck.

Ddunn

Checkmate wrote: »

If you went pointing out this law to me as an employee I'd find every reason to sack you in the future. Don't push your luck.

Maybe true but what if OP genuinely got depressed for not being able to go on holiday and was signed off sick? Not abuse then.

As for not pushing your luck would this apply to people for example who are discriminated against or not paid the NMW. Laws and regulations are there for a reason.

getmore4less

ValHaller wrote: »

The other gut feeling is that once the holiday leave is approved, quite aside from WTR, I think it could be argued to be written into the employment contract - particularly if the employer is empowered to refuse the employee the right to cancel their own leave.

Now this I do agree with, once approved it should be contractual and only changed by mutual agreement.

I seem to recall when I muted this it was pointed out that the right for the employer to dictate/change just about anything to meet business needs would still apply. Might try and find the post sure it was on here a couple of years ago

Checkmate_2

Ddunn wrote: »

Maybe true but what if OP genuinely got depressed for not being able to go on holiday and was signed off sick? Not abuse then.

As for not pushing your luck would this apply to people for example who are discriminated against or not paid the NMW. Laws and regulations are there for a reason.

If OP is signed off sick I'd expect OP to be resting at home or in the hospital. Travelling whilst off sick is taking the !!!!, and if I found that out, although I can't do anything immediately, be sure that I will actively find a legitimate reason to get rid of OP in the future.

I'm on OP's side to take the holiday as agreed, but never ever pretend you're sick and go travelling.

Ddunn

Checkmate wrote: »

If OP is signed off sick I'd expect OP to be resting at home or in the hospital. Travelling whilst off sick is taking the !!!!, and if I found that out, although I can't do anything immediately, be sure that I will actively find a legitimate reason to get rid of OP in the future.

I'm on OP's side to take the holiday as agreed, but never ever pretend you're sick and go travelling.

I agree with all that and that's why I said but what if OP genuinely got depressed

EDIT: I do think there can be circumstances where somebody can be off sick and not in hospital/resting at home e.g. nothing to stop a typist off sick with a broken hand going to the cinema

Checkmate_2

Ddunn wrote: »

I agree with all that and that's why I said but what if OP genuinely got depressed

EDIT: I do think there can be circumstances where somebody can be off sick and not in hospital/resting at home e.g. nothing to stop a typist off sick with a broken hand going to the cinema

Someone going to the cinema with a broken hand is a different story.

Say this typist wanted to book a holiday so he can sun bathe or go surfing in Hawaii, his annual leave is cancelled due to staff shortage, then his hand coincidentally breaks, and he resumes going on holiday just as planned, I will believe he broke his hand deliberately. Expect me to demotivate him into leaving or find a legitimate reason to dismiss him.

Getting depressed so you can go on holiday as originally planned is easily interpreted as deliberately acting depressed in front of doctors so you can be signed off sick and resume taking your holiday. The timing of when you get depressed and get signed off sick and when you originally booked the holiday is important.

OP should take the holiday as agreed. Every good employer would compensate OP if their business is so short staffed. For the amount spent on the booked holiday and a small amount in addition as a bonus.

Ddunn

Checkmate wrote: »

I will believe he broke his hand deliberately. Expect me to demotivate him into leaving or find a legitimate reason to dismiss him.

:eek:

OK.

gem75 wrote: »

This is a hypothetical situation

Good luck OP