Long term sick - Can employer ask me to use some annual leave in return for a full month's salary?

joenitro1

Slightly long post but bear with me!

I've been signed off sick by my GP from my full-time employment now for ~10 weeks, with two herniated discs in my lumbar spine.
This is almost certainly due to my work (~50k miles a year and installing/removing heavy photocopiers/printers) but that's probably not relevant at the moment.

My employer pays 4 weeks full pay sick leave - this took me up to end of September.
They very kindly (at the board's discretion) then paid the next month (October) full salary to me as well, due to my length of service (17 years).

During September/October, I had quite a lot of holiday leave booked which I am obviously reclaiming as I'm signed off sick.
Our holiday calendar runs from Jan 1st - Dec 31st and we're not allowed to roll over into the next year.

Unfortunately, the sickness is still ongoing and I'm waiting to see a private spinal consultant next week to figure out next steps.
I asked HR to ask the board if they'd be prepared to extend their kind offer for November.  HR came back with a compromise:

"They would like to support you, however, we have also noted that you have 19 days annual leave left to take before the end of next month. As a compromise, we’d like to ask that a portion of these days are used this month. Our suggestion is 7 days, is this ok with you? This would ensure full payment throughout November and 12 days holiday outstanding, which we can re-assess next month."

Crucially, I am currently signed off up to and including 22nd November.   So I'm not sure if they mean that they're expecting me to be off for the rest of the month, so would I consider using 7 days after my signed off period?    Or do they expect me to be returning to work after the 22nd, work until the end of the month and give up 7 days annual leave to get a full months salary?

Whilst I am of course extremely grateful for the offer of full salary, I'm unsure if they are within their rights to do this or not?    My understanding was that if you had holiday that couldn't be taken due to sickness, the law was that it is to be reclaimed and COULD be rolled over into the next year?  If I hadn't been off sick, I would have used a lot of my annual leave allowance during Sept/Oct and would certainly have been able to use my entire allowance by the end of the year.

Does anyone have any thoughts on this please?   Any questions, please ask away.

Thanks for reading!

robatwork

Finally a decent employer!

AskAsk

so with the 7 days treated as holiday on full pay for November, you would still be getting more than statutory sick pay? 

if you don't agree, you have the option of statutory sick pay and keep your holidays.

Jillanddy

If you cannot take statutory annual leave (you are not clear on this point) theh there is a right to roll it over if it cannot be taken due to long term sickness. But there is nothing on law that prevents you from agreeing to take holiday and therefore get paid in full for time off. Honestly - I agree with rabatwork, and it's amazing to see an employer offer something fair and reasonable. You can refuse. They can give you statutory sick pay. 

joenitro1

AskAsk said:

so with the 7 days treated as holiday on full pay for November, you would still be getting more than statutory sick pay? 

if you don't agree, you have the option of statutory sick pay and keep your holidays.

They're asking me if I'll give up 7 days of my annual leave allowance in return for a full November salary, as far as I can make out.     I'm pretty sure it seems like a good deal - was just wondering if it was OK for them to do it / or would affect me negatively in some way further down the line etc

joenitro1

Jillanddy said:

If you cannot take statutory annual leave (you are not clear on this point) theh there is a right to roll it over if it cannot be taken due to long term sickness. But there is nothing on law that prevents you from agreeing to take holiday and therefore get paid in full for time off. Honestly - I agree with rabatwork, and it's amazing to see an employer offer something fair and reasonable. You can refuse. They can give you statutory sick pay. 

I'm not quite sure what you're asking ref Statutory annual leave etc?     But I agree in principle.   I think they're being quite nice - just don't want to agree to it and find that it's affected me negatively in the future because I hadn't realised something :-) 

Jillanddy

joenitro1 said:

Jillanddy said:

If you cannot take statutory annual leave (you are not clear on this point) theh there is a right to roll it over if it cannot be taken due to long term sickness. But there is nothing on law that prevents you from agreeing to take holiday and therefore get paid in full for time off. Honestly - I agree with rabatwork, and it's amazing to see an employer offer something fair and reasonable. You can refuse. They can give you statutory sick pay. 

I'm not quite sure what you're asking ref Statutory annual leave etc?     But I agree in principle.   I think they're being quite nice - just don't want to agree to it and find that it's affected me negatively in the future because I hadn't realised something :-) 

There is no right to carry over anything over and above statutory leave, so if your contractual leave is greater than that you may not be able to carry it over. For example, statutory leave is 28 days including public holidays. My leave is 37 days PLUS public holidays. But if long term sick I can only carry over 28 days - the rest I lose. That's why the question is relevant - you didn't mention what annual leave you have or how much you have taken already.

TELLIT01

SSP, Statutory Sick Pay, is under £100 per week.  The employer is looking at ways to keep the OPs income at the same level as their normal pay. 

AskAsk

joenitro1 said:

AskAsk said:

so with the 7 days treated as holiday on full pay for November, you would still be getting more than statutory sick pay? 

if you don't agree, you have the option of statutory sick pay and keep your holidays.

They're asking me if I'll give up 7 days of my annual leave allowance in return for a full November salary, as far as I can make out.     I'm pretty sure it seems like a good deal - was just wondering if it was OK for them to do it / or would affect me negatively in some way further down the line etc

they are entitled to stipulate any terms they like as it is ex-gratia payment so it is for negotiation.  you either agree or you stick to statutory sick pay.  if what they propose is better value than statutory sick pay and you keep the 7 days of holiday then i would accept.

i think someone also said above that there may be a restriction of how many days you can carry over to the next holiday year in some companies.  my company allows no carry over and all holidays have to be taken by the holiday year end or you lose it.  i don't think being sick would be an exception to this rule but i have never had to test it.

joenitro1

Jillanddy said:

joenitro1 said:

Jillanddy said:

If you cannot take statutory annual leave (you are not clear on this point) theh there is a right to roll it over if it cannot be taken due to long term sickness. But there is nothing on law that prevents you from agreeing to take holiday and therefore get paid in full for time off. Honestly - I agree with rabatwork, and it's amazing to see an employer offer something fair and reasonable. You can refuse. They can give you statutory sick pay. 

I'm not quite sure what you're asking ref Statutory annual leave etc?     But I agree in principle.   I think they're being quite nice - just don't want to agree to it and find that it's affected me negatively in the future because I hadn't realised something :-) 

There is no right to carry over anything over and above statutory leave, so if your contractual leave is greater than that you may not be able to carry it over. For example, statutory leave is 28 days including public holidays. My leave is 37 days PLUS public holidays. But if long term sick I can only carry over 28 days - the rest I lose. That's why the question is relevant - you didn't mention what annual leave you have or how much you have taken already.

My annual leave allowance is 28 days plus public holidays. To further complicate this, I was allowed to carry over 5 days from last year due to COVID so my total for this year is 33 days.  I have taken 14 so far, leaving 19 left to take.
From the Acas website:

“ If someone has not been able to use their holiday because they’ve been on long-term sick leave, they can carry it over.

Employees on long-term sick leave can carry over 4 weeks’ unused holiday, unless the employer allows more to be carried over. This holiday must be used within 18 months from the date it’s carried over.”

Obviously this won’t be preferable to me - I’d rather forgo 7 days annual leave in return for a full months salary - no question :-)

getmore4less

AskAsk said:

joenitro1 said:

AskAsk said:

so with the 7 days treated as holiday on full pay for November, you would still be getting more than statutory sick pay? 

if you don't agree, you have the option of statutory sick pay and keep your holidays.

They're asking me if I'll give up 7 days of my annual leave allowance in return for a full November salary, as far as I can make out.     I'm pretty sure it seems like a good deal - was just wondering if it was OK for them to do it / or would affect me negatively in some way further down the line etc

they are entitled to stipulate any terms they like as it is ex-gratia payment so it is for negotiation.  you either agree or you stick to statutory sick pay.  if what they propose is better value than statutory sick pay and you keep the 7 days of holiday then i would accept.

i think someone also said above that there may be a restriction of how many days you can carry over to the next holiday year in some companies.  my company allows no carry over and all holidays have to be taken by the holiday year end or you lose it.  i don't think being sick would be an exception to this rule but i have never had to test it.

The right to carry over cannot be overridden by contract.