holiday pay refused while off sick

getmore4less

The employer should not refuse a reasonabe request for holiday unless there is a business reason.

Missme

getmore4less wrote: »

The employer should not refuse a reasonabe request for holiday unless there is a business reason.

When someone is sick, the reasonableness of the request is questionable.

I have known doctors suggest someone takes a holiday as a means to getting well while off sick. It can be highly controversial but if the reason for sickness is work related then it may fly.

lorryw

It wasnt a demand , simply a request. Husband is a part time maintenance man at a public school. School have been very unhelpful and we are using having to use retirement savings (he is 60) to make ends meet.

paddedjohn

Missme wrote: »

I think the holiday/sick leave thing is conflicted.

If you are sick you are sick - nothing the employer can do about that other than implement ill health procedures.

There is no right to have demanded holiday when an employee wants it.

E.g. I am aware that my employer refuses all leave in December. I am sick in December and demand/ask for it to be paid as leave. The employer says on your bike. Do I have a claim? I think not.

If the Employee chooses to take holiday whilst on the sick it is their choice, not a request.

Employees can choose to take holiday instead of sick leave.

Missme

fair enough OP.

The request was denied.

paulineb_2

I dont think its an unreasonable request given that SSP is running out, however, the only time Ive ever been paid holiday pay was on the termination of my contract. It is also possible that employers might reduce the entitlement to holiday pay if someone has been on long term sickness absence

Are you pursuing any claim against his employers due to the accident that happened in the workplace?

theoretica

As above - is this an accident where his employer's insurer should be paying?

paddedjohn

paulineb wrote: »

I dont think its an unreasonable request given that SSP is running out, however, the only time Ive ever been paid holiday pay was on the termination of my contract. It is also possible that employers might reduce the entitlement to holiday pay if someone has been on long term sickness absence

Are you pursuing any claim against his employers due to the accident that happened in the workplace?

An employer can only reduce the entitlement if they offer enhaced holidays, they cant reduce the legal minimum of 5.6 weeks.

paulineb_2

Just found this online. Apparently it is good practice as long as an employee has given the required notice, to pay holiday pay while someone is off sick, to avoid a tribunal claim.

1. Employees' holiday entitlement accrues when they are on sick leave
If your employees are entitled to 5.6 weeks holidays (or 28 days for workers whose normal working week covers 5 days), i.e. the current entitlement under the Working Time Regulations 1998 (WTR), all this working time entitlement will accrue while an employee is off on sick leave.
(There is an unresolved legal argument that because the UK's Working Time Regulations allow workers more holidays than the European Working Time Directive, that only the Working Time Directive holidays (i.e. 4 weeks) accrue during a worker's sick leave due to the European Court of Justice ruling. However, it is likely, in our view, that Employment Tribunals will consider that all 5.6 weeks will accrue during sick leave.)
The position is different for contractual holiday entitlement.If your workforce is entitled to more than 5.6 weeks holidays (or more than 28 days for workers whose normal working week covers 5 days), the amount of holidays in excess of the working time holiday entitlement is called contractual holiday entitlement. There is no obligation for the contractual holiday entitlement to accrue during an employee's sickness leave. However, contracts of employment should expressly deal with this point. Employers should also consider any disability discrimination issues that may arise, if such holidays are not allowed to accrue.
2. An employee can choose to take paid holidays while on sick leave
To avoid Tribunal claims, employers should pay holiday pay for holidays that have been requested and approved during a period of sick leave. An employer can refuse to approve a request to take holidays if the employee has not given appropriate notice. Unless the contract provides otherwise, the employee must give his or her employer notice of the proposed start of the holidays, which is twice as long as the holidays requested, i.e. if they want to take a week they have to give at least 2 weeks notice, although contracts can provide for longer.
In practice, employers may find employees taking paid holidays once company sick pay runs out. For employers who only pay statutory sick pay, employees may seek to take holidays to cover short periods of sickness absence, such as 3 or 4 days. Unless appropriate notice is given, the employers can refuse this request.
3. An employee must be paid their "normal" pay in respect of holidays taken during sick leave.
This will mean for workers with normal working hours, their normal weekly pay, or for this without an average over the last 12 weeks they actually worked.
4. Employers can give employees on sick leave notice to take working time holidays.
After Stringer, a practical solution to the uncertainties for employers was to give sick employees notice to take working time holidays while the employee is off sick and before the end of the leave year.
However, the effect of the recent Pereda case from the ECJ is that workers on sick leave can choose whether or not to be treated as off on sick leave or off on annual leave. So employers cannot force employees to use up holidays while they are on sick leave. This particularly affects employers who have set shutdown periods, for example at Christmas and trades holidays or teachers. For more information, click here.
5. Unfortunately there are a number of unresolved issues in the judgments which will require further litigation before they are answered
Can an employee who is off sick at the end of the holiday year carry over unused holiday entitlement?
The WTR provide that if an employer and employee agree in writing (for example in an employment contract), a maximum of 1.6 weeks (or 8 days) holiday can be carried over to the next leave year. Any accrued but untaken holiday in excess of this maximum cannot be carried over or paid in lieu.
Can an employee who has been off sick for several years claim pay for a previous unclaimed holiday pay?
In spite of the WTR's limited carry over provision, the House of Lords has left open the door for employees to claim previous years' holiday pay as an unlawful deduction from wages – potentially allowing employees to be paid for all of an employee's previous years' holidays by the back door. This may lead to some employers dismissing sick employees earlier than they otherwise would have to avoid an employees' entitlement continuing to accrue year on year.
Conclusion
Employers will, inevitably, be disappointed at the additional cost they will face due to these decisions.In response, employers should:
1. Review and update holiday and sickness procedures.
If an employer wishes to impose a "use it or lose it" approach to unused holiday pay at the end of the holiday year for employees on sick leave, employees should be informed of their right to take holiday leave while off sick.This will stop employees from claiming that they have been prevented from taking their holidays during the leave year.
If they have not already done so, the employer should put in place procedures for robustly monitoring sickness absence.
2. Review terms and conditions of employee's contracts dealing with contractual holidays, above the working time minimum.
3. Consider each employee on long term sick on his/her own facts and circumstances.Note that issues relating to disability discrimination can arise if a broad brush approach is followed.
For more information on holidays during Sick Leave contact a member of Thorntons' Employment Law Team


4. Employers can give employees on sick leave notice to take working time holidays.
After Stringer, a practical solution to the uncertainties for employers was to give sick employees notice to take working time holidays while the employee is off sick and before the end of the leave year.
However, the effect of the recent Pereda case from the ECJ is that workers on sick leave can choose whether or not to be treated as off on sick leave or off on annual leave. So employers cannot force employees to use up holidays while they are on sick leave. This particularly affects employers who have set shutdown periods, for example at Christmas and trades holidays or teachers. For more information, click here.
5. Unfortunately there are a number of unresolved issues in the judgments which will require further litigation before they are answered
Can an employee who is off sick at the end of the holiday year carry over unused holiday entitlement?
The WTR provide that if an employer and employee agree in writing (for example in an employment contract), a maximum of 1.6 weeks (or 8 days) holiday can be carried over to the next leave year. Any accrued but untaken holiday in excess of this maximum cannot be carried over or paid in lieu.
Can an employee who has been off sick for several years claim pay for a previous unclaimed holiday pay?
In spite of the WTR's limited carry over provision, the House of Lords has left open the door for employees to claim previous years' holiday pay as an unlawful deduction from wages – potentially allowing employees to be paid for all of an employee's previous years' holidays by the back door. This may lead to some employers dismissing sick employees earlier than they otherwise would have to avoid an employees' entitlement continuing to accrue year on year.
Conclusion
Employers will, inevitably, be disappointed at the additional cost they will face due to these decisions.In response, employers should:
1. Review and update holiday and sickness procedures.
If an employer wishes to impose a "use it or lose it" approach to unused holiday pay at the end of the holiday year for employees on sick leave, employees should be informed of their right to take holiday leave while off sick.This will stop employees from claiming that they have been prevented from taking their holidays during the leave year.
If they have not already done so, the employer should put in place procedures for robustly monitoring sickness absence.
2. Review terms and conditions of employee's contracts dealing with contractual holidays, above the working time minimum.
3. Consider each employee on long term sick on his/her own facts and circumstances.Note that issues relating to disability discrimination can arise if a broad brush approach is followed.
For more information on holidays during Sick Leave contact a member of Thorntons' Employment Law Team


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paulineb_2

Hope this helps OP.

Also, Id be trying to find out what is going to happen going forward, because you say your husband is coming to the end of his SSP.