Employer deducting accrued holiday pay due to receipt of ESA

oldbill1969

Hi, I don't know whether anyone would have a steer on this one?
My partner works for the NHS and due to ill health was off work for 13 months. They were paid full pay for 6 months before moving down to half pay. My partner claimed ESA when she moved onto half pay which topped her income up.


My partner works term time and 2 hrs per week is deducted from his pay to cover the extended holidays over and above their basic holiday entitlement. The employer has agreed to pay the holidays not taken due to the extended sickness however they are saying that they will be deducting the total of ESA payments, against the outstanding holiday pay entitlement? Are they allowed to do this?

Undervalued

oldbill1969 wrote: »

Hi, I don't know whether anyone would have a steer on this one?
My partner works for the NHS and due to ill health was off work for 13 months. They were paid full pay for 6 months before moving down to half pay. My partner claimed ESA when she moved onto half pay which topped her income up.


My partner works term time and 2 hrs per week is deducted from his pay to cover the extended holidays over and above their basic holiday entitlement. The employer has agreed to pay the holidays not taken due to the extended sickness however they are saying that they will be deducting the total of ESA payments, against the outstanding holiday pay entitlement? Are they allowed to do this?

If that is a contractual term of the company (NHS) sick pay then yes.

Many years ago I was involved with a University. They too paid 6 months full pay and 6 months half pay. However it was a condition of the scheme that you claimed Incapacity Benefit (which later became ESA) if eligible after six months. The University then made up the balance of the half pay. If you weren't eligible for IB / ESA then they paid all of the half pay providing you convinced them you had made every effort to claim the benefit including appealing if initially turned down.

At the time I was told (maybe wrongly?) that the NHS didn't have the same rules but maybe they do now?

oldbill1969

Thanks for your reply.

I don't believe it is a contractual term, well certainly not contained within the NHS Terms and Conditions. There is reference to -

14.15 An employee who is absent as a result of an accident is not entitled to sick pay if damages are received from a third party. Employers will advance to an employee a sum not exceeding the amount of sick pay payable under this scheme, providing the employee repays the full amount of sickness allowance to the employer, when damages are received. Once received the absence shall not be taken into account for the purposes of the scale set out in paragraph 14.2 in this Section.

The above I can understand as to why they would reclaim, but not for holiday pay contractually accrued. My partner would be better off insisting on the accrued holidays being honoured and not paid if this was the case.

getmore4less

https://www.nhsemployers.org/tchandbook/part-3-terms-and-conditions-of-service/section-14-sickness-absence-england

14.6 Full pay needs to be inclusive of any statutory benefits (so as not to make sick pay greater than normal working pay). The combined addition of statutory sick pay to half pay must not exceed full pay.

oldbill1969

getmore4less wrote: »

https://www.nhsemployers.org/tchandbook/part-3-terms-and-conditions-of-service/section-14-sickness-absence-england

Sorry,, you will have to explain the relevance of the link? The combined half pay and ESA was less than her full time earnings. I can't see any reference to the scenario I have provided unless I'm having a dull moment.

getmore4less

THat's the point

You have something you can show them that says they can't deduct the ESA from the contractual sick pay if the total is still below full pay.

You need to get them to show you where it says they can deduct the ESA from any pay.


There are probably other issues with the pay

My partner works term time and 2 hrs per week is deducted from his pay to cover the extended holidays over and above their basic holiday entitlement

.

What does this mean?

Are they paid only when they work or is it averaged over 12 months

what is the holiday allowance.

The statutory holiday element of the accrual should not be paid it should be taken

kittycat66

have you spoke to CAB?