annual leave and suspension

marybelle01

I know the answer! But I honestly admit, I read it from someone else who knew the answer - someone who used to post here.

Whilst suspended ALL aspects of your contract remain intact. You are still at work, you are simply obeying your employers "reasonable instruction" to not attend the workplace. Therefore you are still entitled to all benefits of your employment and must adhere to all the rules of your employment. So sloping off on holiday isn't allowed because it isn't allowed if you are in the workplace. Leave that is booked in accordance with the employers policies is allowed if they have agreed it. Just like normal.

And also (same source) if you are sick and want to go away on holiday you must ask your employers permission and it may be taken from your leave entitlement. The same goes for when you are sick - you still need your employers permission to go on holiday, because you are sick and not on holiday. If you are in employment, even if the employer isn't paying you or only paying SSP, all your contractual terms remain in place, as do all the policies you are bound by.

Southend1

marybelle01 wrote: »

I know the answer! But I honestly admit, I read it from someone else who knew the answer - someone who used to post here.

Whilst suspended ALL aspects of your contract remain intact. You are still at work, you are simply obeying your employers "reasonable instruction" to not attend the workplace. Therefore you are still entitled to all benefits of your employment and must adhere to all the rules of your employment. So sloping off on holiday isn't allowed because it isn't allowed if you are in the workplace. Leave that is booked in accordance with the employers policies is allowed if they have agreed it. Just like normal.

And also (same source) if you are sick and want to go away on holiday you must ask your employers permission and it may be taken from your leave entitlement. The same goes for when you are sick - you still need your employers permission to go on holiday, because you are sick and not on holiday. If you are in employment, even if the employer isn't paying you or only paying SSP, all your contractual terms remain in place, as do all the policies you are bound by.

But... Your employer cannot dictate where you can and can't go when not working. So if you went on holiday on suspension why would this be a problem as long as you were available for recall to work? Otherwise they could suspend you and tell you you must stay in your house and not leave it until they give you permission!

marybelle01

Southend1 wrote: »

But... Your employer cannot dictate where you can and can't go when not working. So if you went on holiday on suspension why would this be a problem as long as you were available for recall to work? Otherwise they could suspend you and tell you you must stay in your house and not leave it until they give you permission!

That's the point - you ARE working, You are simply not attending the workplace and not being required to do any work. But the law says you are employed and therefore all the contractual conditions apply. Including policies. If you are on holiday (properly booked) then you are on an agreed contractual term. Slope off and you can be disciplined for breaking the rules. On top of whatever you may be disciplined for if the suspension turns into a disciplinary.

If you are suspended you must comply with your normal contractual and legal responsibilities - and that includes how you book leave. Otherwise you can be disciplined for not doing so.

Southend1

marybelle01 wrote: »

That's the point - you ARE working, You are simply not attending the workplace and not being required to do any work. But the law says you are employed and therefore all the contractual conditions apply. Including policies. If you are on holiday (properly booked) then you are on an agreed contractual term. Slope off and you can be disciplined for breaking the rules. On top of whatever you may be disciplined for if the suspension turns into a disciplinary.

If you are suspended you must comply with your normal contractual and legal responsibilities - and that includes how you book leave. Otherwise you can be disciplined for not doing so.

So what's the difference between not attending the workplace and not being required to do any work whilst

A) sitting at home twiddling thumbs
down at the supermarket doing your weekly shop
C) sitting in your villa in Spain twiddling thumbs

I think there's a very strong argument that since the employer cannot dictate where you go when not required to be present in the office they cannot dictate where you go when suspended.

In the 3 scenarios above, you clearly wouldn't expect a suspended employee to book leave if they were A) at home twiddling thumbs, so why would you in scenario or C), so long as they were available for immediate recall to work?

zzzLazyDaisy

For what it's worth (and you are of course free to dismiss anything I say) if a client asked me this question, my response would be that the only reason the employee was not attending work was because the employer had taken the decision to suspend him/her on full pay to enable the investigation to take place. While this was a perfectly reasonable response to the situation at the time, the fact remains that the employee was able and willing to work and the only reason they were not at work was the suspension. In those circumstances, my view would be that they were free to do anything they liked with their time during suspension (including going on holiday, visiting, their aged grandmother, or doing a part-time knitting course) as long as the employee made his/herself available for work/meetings when required to do so. Further, holiday entitlement continues to accrue during the period of suspension.

Frankly an employer can't have it both ways - they cannot put an employee on paid suspension from work, and at the same time insist that the employee use up part of their annual leave during that period of suspension.

Daisy

Savvy_Sue

I follow your argument, Daisy, BUT if an employee on an extended period of sick leave requested paid leave, I believe they can come 'off' sick leave, go on leave, then go back 'on' sick leave at the end.

This enables them to have some time on full pay if they're now on SSP or half pay.

so I would argue that the same can be true if you're suspended: you have to remain available for meetings etc, but you've got a villa in Spain booked from which you don't wish to return for meetings. Therefore you book paid leave for that period.

If the employee thinks that's what they did, I wouldn't argue with them!

Yorkie1

Savvy_Sue wrote: »

I follow your argument, Daisy, BUT if an employee on an extended period of sick leave requested paid leave, I believe they can come 'off' sick leave, go on leave, then go back 'on' sick leave at the end.

This enables them to have some time on full pay if they're now on SSP or half pay.

so I would argue that the same can be true if you're suspended: you have to remain available for meetings etc, but you've got a villa in Spain booked from which you don't wish to return for meetings. Therefore you book paid leave for that period.

If the employee thinks that's what they did, I wouldn't argue with them!

I'm not sure I agree with the analogy, though I confess I am no expert.

If you are signed off sick, then you are unfit to attend work. By cancelling the sickness status, you declare that you are fit to attend work - and the employer has the right to cancel holiday / insist upon attendance as long as sufficient cancellation notice is given (as we see on here from time to time). Clearly the employee is at risk in this situation.

I had also read, though do not know if it's an urban myth, that if you have a fitness note saying you aren't fit for work, then there are insurance complications for the employer if you return.

Given additionally the law which now states that statutory holiday leave accrues during a period of sickness, I am not convinced that the suspension vs sickness parallel is on all fours.

zzzLazyDaisy

Yorkie1 wrote: »

I am not convinced that the suspension vs sickness parallel is on all fours.

Neither am I, but to a large extent I suspect it is irrelevant. Think about it - an employee has been on suspension through no fault of their own and later cleared of all allegations. Us HR/Lawyer types always make it clear that 'suspension is a neutral act which does not indicate guilt' but while this is true, everyone knows that no-one gets suspended for no reason. Whatever the reason was, it must have been pretty serious. There will always be someone who secretly (or no so secretly) thinks 'no smoke without fire'.

OP is asking for general information, while waiting for a response to the question from HR

So there is going to have to be a lot of goodwill on both sides and a genuine wish to build bridges and put the past behind them if the essential trust and confidence between employer and employee is to be restored.

Given that background, few employers would deduct annual leave from a period of enforced suspension (that is unless they were wanting to make the employee's life uncomfortable in the hope that s/he would leave under their own steam - which is not unheard of).

OP, if a decision is made to allow the employee to take the full leave remaining, one option for you might be to negotiate with HR and the employee to come to an arrangement to allow the employee to carry over some of the annual leave entitlement to the next holiday year. Any statutory holiday should be taken within the leave year, but any additional contractual leave can be carried forward if the employer's rules permit or if the employer and employee come to an agreement about this. Failing that, perhaps the employer can arrange cover - after all, what would you do if an employee was off sick/on maternity leave while others were on holiday?

Savvy_Sue

Actually, there is an alternative position in the negotiating strategy. We know that statutory leave must be taken during the leave year, can't be carried forward, can't be paid for. We also know that this is rarely investigated or enforced while an employee remains in post.

And we know that the employee seems to think that they were on leave for a part of their suspension period.

So I might consider carefully worded negotiations which on this occasion only allowed the employee to carry forward more leave than is usually allowed, while insisting that some of the 30 days remaining IS taken in this leave year.

Out of interest, how much leave did they think they'd taken while they were suspended?

Takeaway_Addict

zzzLazyDaisy wrote: »

For what it's worth (and you are of course free to dismiss anything I say) if a client asked me this question, my response would be that the only reason the employee was not attending work was because the employer had taken the decision to suspend him/her on full pay to enable the investigation to take place. While this was a perfectly reasonable response to the situation at the time, the fact remains that the employee was able and willing to work and the only reason they were not at work was the suspension. In those circumstances, my view would be that they were free to do anything they liked with their time during suspension (including going on holiday, visiting, their aged grandmother, or doing a part-time knitting course) as long as the employee made his/herself available for work/meetings when required to do so. Further, holiday entitlement continues to accrue during the period of suspension.

Frankly an employer can't have it both ways - they cannot put an employee on paid suspension from work, and at the same time insist that the employee use up part of their annual leave during that period of suspension.

Daisy

Ok, say the employee is suspended and goes on a 2 week holiday and the employer requests via writing (recorded) for a meeting in the middle of the second week then surely there is an issue here as the employee is not ready or able to work when required?