Holiday allowance while off sick and phased return to work

GlasweJen

my last day at work was yesterday, our holiday calendar runs from January to December and I was full time, 28 day allowance.

I've taken 6 days off this year but had booked an additional 4 days that I was off sick for (sickness period lasted 7 weeks, I got company sick pay and the sickness fell into these times).

I was then on a phased return to work, no one ever discussed with me any changes to my salary or holiday entitlement during the phased return period - I had work related stress.


Yesterday my boss called me into the office, he had calculated how many days id not been working as a result of the phased return and was going to take 3.5 days out of my next wage. He'd worked this out by calculating my annual leave allowance, deducting the holidays id booked (including the days id booked but couldn't take because I was sick) then deducting the difference in my contracted hours and hours id actually worked.

Now if id been told he was taking my phased return out of my holiday allowance id have stayed off sick until I could return full time, or left for the new job. I asked when he was planning to tell me I had no holiday time and he said it wouldn't have affected me if I'd stayed at work?

Obviously I'm going to call a lawyer tomorrow (have legal cover on my home contents insurance) but can anyone tell me if its standard practice to deduct phased returns from holiday allowances and if holidays booked over sick periods should be credited back?

In my head he either owes me a day and a halfs wages because I have 4 holiday days accrued or owes me 10 days as I never agreed to sacrifice holiday so he can dictate my hours and days.

ali-t

If you have a sick line covering the period you planned to be on annual leave then you should get the a/l back.

theoretica

Similarly, did you have a doctor's note about the phased return saying you weren't fit for full time?

GlasweJen

Yes to both. I had sick lines saying not fit for work for 7 weeks and then another saying may be fit for work considering a phased return to work and light duties that covers me until now. The holiday was right in the middle of a 4 week sick line.

GlasweJen

The only thing I have in writing from the boss is a copy of his working for how he is deducting my wages - nothing else, not even a written intention that he is going to deduct from my hours. Just 2 sheets of A4 paper that he's typed mathematics onto, it doesn't even feature units so anyone else reading the piece of paper would struggle to know what the figures were relating to.

Employment contract only mentions that sick pay is discretionary and has nothing in it about phased returns to work or any circumstances under which deductions can be made from holidays and the employee handbook mentions nothing about this either.

I was asked to sign a leavers form that had blank boxes relating to holidays and hours but that was on Friday so before this was ever mentioned and the boxes said something about "for payroll use only" so I assumed would be filled out by head office.

I don't know if I should file a grievance now or wait until they actually deduct anything from my wages.

As far as I was led to believe the difference in my hours between my normal contract and my phased return was being covered by company sick pay but sick pay has never been marked on any of my pay slips (they're very basic for a big company) so I would never have known until I asked for time off in September and got told I had no holiday left.

If I'd known I was taking "holidays" and not phasing return to work I would have changed the hours that they scheduled me for (9am starts instead of 10 and things like that) and instead of having days off sick (I had a chest infection) I would have come in other days instead of losing a days wages.

vegasvisitor

I'm not quite sure what you mean about the holidays when you were off sick, however I believe that any holidays that you had scheduled during a certified period of sick leave should be added back to your allowance. ie you were sick on those days and not on holiday.

As for a phased return to work, it is normal for those hours to be deducted from your holiday allowance. You can't be part sick and part at work as far as I know. So if you work half hours for 2 weeks for example you would be using up a week's holiday. It really balances out usually, because if you have been off long term then you will have extra holidays (as you weren't able to use them while sick but still accrue them), then if you need phased return to work you can use them up that way. I think it would be fairer if you knew that upfront though, however it probably wouldn't change whether you were able to return full time or on a phased return really.

I think it makes more sense to query it now, than just let it happen then file a grievance against an employer you'd no longer be with.

GlasweJen

So the days from April when I was off sick should be added back onto my allowance?

fed_up_and_stressed

GlasweJen wrote: »

So the days from April when I was off sick should be added back onto my allowance?

As far as the courts are concerned, when an employee is signed off work due to sickness or injury any planned annual leave shouldn’t be lost because of it. That’s because the purpose of annual leave is to allow the employee an uninterrupted period of rest, not to recover from whatever ailment has coincidently befallen them (which almost certainly isn’t their fault).

Provided the employee in question has fully complied with sickness absence reporting requirements, their pre-booked period of annual leave should be re-credited and that same period of time now classed as sick leave. To avoid any misunderstandings, The employer should confirm the position in writing and advise the employee that: (1) the pre-booked period of annual leave will now be added back to their overall annual leave entitlement; and (2) they are being classed as being unfit for work for the period.

Employees may however choose to keep the period as annual leave rather than sick leave if they wish (e.g. If an employee would only get ssp (if employer has no company sick pay) if logged as sick leave where they would get their contructual pay for annual leave).

Undervalued

fed_up_and_stressed wrote: »

As far as the courts are concerned, when an employee is signed off work due to sickness or injury any planned annual leave shouldn’t be lost because of it. That’s because the purpose of annual leave is to allow the employee an uninterrupted period of rest, not to recover from whatever ailment has coincidently befallen them (which almost certainly isn’t their fault).

Provided the employee in question has fully complied with sickness absence reporting requirements, their pre-booked period of annual leave should be re-credited and that same period of time now classed as sick leave. To avoid any misunderstandings, The employer should confirm the position in writing and advise the employee that: (1) the pre-booked period of annual leave will now be added back to their overall annual leave entitlement; and (2) they are being classed as being unfit for work for the period.

Employees may however choose to keep the period as annual leave rather than sick leave if they wish (e.g. If an employee would only get ssp (if employer has no company sick pay) if logged as sick leave where they would get their contructual pay for annual leave).

Although many (perhaps even the vast majority) of employers allow something like that it is not actually a legal right so it is at their discretion.

As you say, you cannot lose statutory holiday (28 days per year) as a result of being sick. If you get more that the minimum 28 days holiday you may lose that depending on your employer's policy and / or discretion.

It is very rare these days for company sick pay to be a contractual right. Generally the word "discretionary" will crop up in the terms and conditions.

In agreeing to any phased return to work it is important to fully understand how much the firm propose to pay. It is not automatic that you will get full pay whilst working reduced hours.