Employer trying to deny me holiday pay while on long term sick

TheAircrashBureau80

Hi,

I have been on sick leave from my workplace for over four years as I have severe obstructive sleep apnoea, and the line manager who signed me off work in May 2009 no longer works for the company. I have recently learned that a lot of the managers and directors have left, and their attitudes were very old school, thinking that as I'm off sick and have been paid 26 weeks sick pay then I won't cost them anything and be forgotten about.

A sales manager has taken over the directorship role and was left to deal with their legacy, and when I attended a meeting with him today to discuss my absence and the fact that I have accrued and continue to accrue holiday pay entitlement, he was told by his legal advisors that I was only entitled to 10 days (2 weeks) holiday pay totaling £572. I know that I should be getting over £5000 based on 18 weeks accured holiday pay. The manager was advised that I have lost the previous years' leave entitlement and I'm only entitled to pay from this leave year. I argued that there are test cases freely available online (Stringer v HMRC & NHS Leeds v Larner) which contradict what the director told me. The HR manager was jotting down the above test cases so I imagine that she will look them up online!

I know that there are many good forum users on here who give sound advice, so could anyone tell me who's in the right please.

Thank you in advance.

WestonDave

This might be a case of winning a battle but losing the war. I wouldn't dispute your position although there is some argument that it should have been dealt with by both sides earlier.

However whilst they weren't paying you any holiday pay you weren't a cost to the business but if on checking they discover you are costing them £1200 per year in holiday pay, they may also start looking into dismissal on capability grounds, which after 4 years you'd struggle to blame them for.

antrobus

One commentary on the case of Stringer v HMRC states that the key points are that;

Workers must be allowed to take this holiday on their return to work

Workers must be paid in lieu of this holiday if their employment terminate

http://www.personneltoday.com/articles/21/01/2009/49084/paid-holiday-ecj-ruling-on-stringer-v-hmrc.htm

Poppie68

Unbelievable this has'nt been dealt with by either party in 4 years. I would think that holiday pay would have to of been asked for when it was due. What company would though keep someone in their employ even if not paying SP, but pay out holiday pay year after year,maybe this will give them a nudge to remedy this.

notanewuser

timbo58 wrote: »

4.2 weeks per year - that's the legal minimum, it can include public B'hols of course.
Your contract may actually state more: many do -it's worth checking!

You meant 5.6 weeks, including bank holidays, didn't you? That's 28 days for a full timer. The company don't have to pay anything above this regardless of what's in the contract when long term sick is involved.

As an HR consultant I'd be strongly recommending they dismiss (as they should have 3 years ago.

notanewuser

timbo58 wrote: »

Yes, sorry! I meant 4.2 w/o bh's.

I think it's likely you might get the 18 days holiday pay but end up being dismissed.

The only time an employer is obliged IME to carry on employing is if the illness is clearly under the discrimination of disability legislation.

Wrong again.

Takeaway_Addict

timbo58 wrote: »

Yes, sorry! I meant 4.2 w/o bh's.

I think it's likely you might get the 18 days holiday pay but end up being dismissed.

The only time an employer is obliged IME to carry on employing is if the illness is clearly under the discrimination of disability legislation.

An employer is under no such obligation, they can dismiss as and when they want. Whether its legal or not is a different thing and whether or not they get compensated by a tribunal is another.

Also, its 5.6 weeks as stated which can include BH's.

For the OP this is one of those things that the law is on their side and rather than the company forgetting about them they probably left it as is not to hurt the OP any further. Obviously as has been stated as soon as you stir the hornets nest you are very likely to be dismissed

I would suggest OP that you use this opportunity to look at a compromise agreement, take less money and an agreed reference if you are looking to go back to work.

TheAircrashBureau80

Thank you all for your replies.

I accept that dismissal will most likely be the outcome, it's all the accrued holiday pay entitlement which I have built up and getting paid for it is my main concern. I am aware that I'm still employed by my company and as I have an existing contract but on long term sickness, my rights to holiday pay do not diminish. The director insisted that as I didn't put in a request for annual leave each year I was off work, I lose the right to take it. I argued that I am not obliged to do so ( as in the NHS Leeds v Larner case) and being on long term sick and holiday pay entitlement overrides what is written in a contract of employment as these are regarded as 'extenuating circumstances.'

My company want to have an independent medical examiner come and see me, as well as writing to my GP about my condition - crossing the T's and dotting the I's as the director put it, before the next stage. I'm going to contact my Union tomorrow and seek their advice.

At the end of the day I'm only standing up for what I believe I'm entitled to, as anyone who's in my position would.

Proc

I can see why so many employers are doing zero hour contracts, fixed-term contracts and cutting back on workforce.

When an employee who has been sick for four years can still claim holiday pay, something somewhere is horribly wrong.

TheAircrashBureau80

timbo58 wrote: »

4.2 weeks per year - that's the legal minimum, it can include public B'hols of course.
Your contract may actually state more: many do -it's worth checking!

However, this annual leave pay is usually paid to you once annually -I can understand a company not remembering to pay you, bad as that might be, however didn't you chase this pay owed or have you only just realised?

I'm not at all sure it can be back dated much before the year after it was due but I'm sure someone with more experience will come along later with a more definitive answer.

Companies do have to hang on to financial stuff (including wages) for at least 6 years so they know full well that they haven't paid you.

Hi timbo58,
I have only recently realised that I was accruing annual leave pay whilst on long term sick leave, and I informed my employer of this fact. I know and accept that I will probably be dismissed, my condition would not allow me to resume my full time position as I did prior to me being signed off work.

jacques_chirac

Proc wrote: »

I can see why so many employers are doing zero hour contracts, fixed-term contracts and cutting back on workforce.

When an employee who has been sick for four years can still claim holiday pay, something somewhere is horribly wrong.

I have to agree. I can see an argument for accruing leave within the year the sickness began, and for that to be taken/ paid only on return, but four years is ridiculous. I do wonder if a court would be willing to take a common sense approach, differentiating from existing case law due to the length of the absence and the size and financial means of the employer?