Holiday entitlement and sick leave – some clarity?


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Legal, Resources

Updated 2014.

There has been plenty of confusion surrounding how workers holiday entitlements (given by the Working Time Regulations) react with sickness absence. With several years of conflicting UK and European Court decisions, we are finally getting close to some clarity about what entitlements people have to holiday entitlement when they are sick.

Here we break down what we know so far. It is a rather confusing subject, so please bear with us!

Do you accrue Holiday entitlement if you are off work on sick leave?

In January 2009 the European Court of Justice ruled that workers are entitled to accrue statutory minimum holiday entitlement while on sick leave and can carry that leave over into another year if they are too ill to take it and prefer not to take it during their sick leave (and / or be paid in lieu for any leave they are unable to take if their employment is terminated).

Following other cases, it has now been accepted that workers continue to accrue annual leave entitlement during sickness absence.

And it is also accepted that if an Employee chooses to take their holiday leave entitlement while on sick leave they would be paid normal holiday pay rather than company or statutory sick pay (which may be less or none depending on how long they have been off sick) for the days they treat as annual leave. If you qualify for SSP you would continue to receive this during any annual leave pay period.

What was still in doubt was the issue of carrying over unused leave (accrued because of sickness absence) into the next leave year. The UK referred this to the UK House of Lords in May 2009 as the way the UK Law on the Working Time Directive is written conflicts with the 2009 decision by the ECJ – the law in the UK requires workers to use their holiday entitlement within the leave year or lose it (unless an agreement exists to the contrary), while the EC Directive itself is silent on this issue but ECJ case law has said carry over of leave is allowed.

The House of Lords ruled that people who are denied to accrue holiday pay while on sick leave can make a claim to an Employment Tribunal for an ‘unauthorised deduction from wages‘ (with claims possibly being able to be back-dated as far back as 6 years). This ruling supercedes UK WTD Legislation and UK Tribunal decisions since then have backed up the ECJ’s decision.

Finally, in 2012 UK case law clarified this position further so now we wait for the Government to amend the Working Time Regulations.

So, until the summer of 2012, workers at UK institutions that are defined as an ‘emanation’ of the state (i.e. public sector workers) could rely directly on the European Working Time Directive and ECJ decisions, so can roll over their untaken holiday (accrued during sickness absence) into the next leave year. However, private sector workers were unable to do so as their holiday entitlement is governed by the UK Working Time Regulations.

Now, the UK Court of Appeal in the summer of 2012, has ruled that employees on long-term sick leave are automatically entitled to carry forward their annual leave into the next holiday year (even if they do not request to do this) and are entitled to be paid for this outstanding leave if their employment is terminated.  The case in question was NHS Leeds v Larner.  The Judges in this case commented that they considered that it was possible for all UK workers to take the same position, not just public sector workers - this does not mean a precedent for private sector workers to have similar treatment has been set, but the Judges’ comments are seen as highly ‘persuasive’ that this should be the case.

This decision, however, only deals with the 4 weeks statutory leave entitlement that is provided by the original EU Directive and not the additional 1.6 weeks that is provided by the UK Regulations.  It remained unclear whether all workers were entitled to rollover the additional 1.6 weeks leave until March 2013 and the case of Sood Enterprises Ltd v Healy, when the Employment Appeal Tribunal held that Employers are not required to carry over the additional 1.6 weeks leave (provided by UK Regulations).

It is also unclear how many years of leave this can continue for – it is clear that the carry-over of untaken leave cannot be for an indefinite period but the actual period needs to be defined, hopefully by the Government.  A case in 2013 said a time limit of 15 months or more to carry over accrued leave is likely to be enforceable.

For details of your pay rights during your notice period if you are off sick go to this link.

Now for some clarity at last?

In 2011 the Government consulted on making changes to the WTR to reflect the issues about carrying over leave because of sickness absence – and proposed that the Regulations were amended to allow the 4 weeks statutory leave to be rescheduled or carried over in the next leave year for all workers. The outcome of the consultation has not yet been published but it is expected this will be the result.  Therefore Employers need to consider how their policies and contracts of employment are worded regarding this issue.  The Government were expected to amend legislation in 2012 but this has still not happened!

A case that reached the ECJ (European Court of Justice) in 2014 confirmed that annual leave accrued before the death of an employee, while they were still employed, must be paid to the estate of that employee.  The ECJ concluded that the Working Time Directive cannot be interpreted as meaning that entitlement to paid annual leave is lost because of the workers’ death.

News on sickness during scheduled Annual Leave

The summer of 2012 has also bought more clarity to the issue of when a worker is sick while they are on annual leave. Previous decisions by the European Court of Justice made it clear that where is a worker was unfit for work before the start of a period of paid annual leave, they were entitled to take that leave at another time (which did not coincide with the period of sick leave).

Now, the latest case from the ECJ says that it is irrelevant when the sickness incapacity starts – it can be during a period of annual leave, it does not have to be before the start of the annual leave.  So, workers who fall sick during their annual leave have the right to re-take that leave at a later date, even if this is carried over into the next leave year.

The Government consultation, mentioned above, is likely to include this issue in their amendments to the UK Working Time Regulations

Notes for Employers:

  • In the UK it is estimated that about 45% of the workforce are only entitled to SSP (they have no company/contractual sick pay on top).  Therefore in financial terms it may not make sense for an employee to want to be paid SSP while on holiday as it is likely that their holiday pay will be more generous than their entitlement to SSP (and SSP is not available for the first 3 days of sickness absence).
  • Sick Pay is only payable when a worker is medically unfit to do their job.  Therefore a worker who cannot, for example, fly or go swimming because of a minor infection, may still be fit to do their job and therefore would not be entitled to sick pay.

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If you are an Employer and need ongoing professional help with any staff/freelance issues or a Contractor/Freelancer/Employee with a complicated employment related problem then talk to Lesley at The HR Kiosk - a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

Photo by Daniel Go

  • Nory

    carrying over leave because of sickness absence were amended to allow the 4 weeks statutory leave to be
    rescheduled or carried over in the next leave year for all workers

    Question: Are Statutory days included in the 4 weeks.

    So if a Workers has used 11 days holiday entitlement & used 6 Statutory then the carry forward would be 3 Days

    • lesleyfurber

      Hi Nory, if your questions is whether bank/public holidays are included in these 4 weeks then the answer would be yes (although, as the article says, the Government have not yet amended the law in the UK to reflect the decisions that the Courts have already made). So yes, 3 days, unless your Employer allows for more carry over in their contracts of employment. Regards, Lesley, Workline

  • Claire McAndrew

    Hi there, I hope you can help with this one – can my employer force me to take annual leave whilst I am off sick. I travelled abroad, post surgery, and they say I have to take annual leave. It wasn’t pre-booked annual leave, prior to sickness, it was just an opportunity that occurred, to travel with my sister for a few days, as I was off on sick leave.

    Thanks

    • lesleyfurber

      Hi Claire, they should pay you statutory sick pay if you were off sick, and you met all the qualifying conditions for receiving SSP; they may not need to pay you any occupational sick pay you are entitled to (it will depend on what is written in your contract/handbook about the conditions for receiving occupational sick pay). So, no I don’t think they can force you to take annual leave if you were covered by a sick note for this period. Regards, Lesley, Workline

      • Claire McAndrew

        Many thanks, I really appreciate you taking the time to reply to me. I have a valid sick note and I am getting occupational sick pay. I’ve had to say I’ll deal with this through a grievance when I return to work. I’ve attended meetings as requested, to review my sickness – however, because I went away, my employer is saying I was unavailable for that period, and annual leave will be taken from me. I was hoping to find some case law, that you’re employer can’t force you to take leave whilst off sick – but I can’t find any! Thanks again for your help,

        • lesleyfurber

          Hi Claire, let me look into this in a bit more detail and I’ll get back to you by e-mail – it may not be today though. Regards, Lesley, Workline

  • lesleyfurber

    Hi Ian, thanks for your message. Are you saying that days you are actually off sick you want to take as holiday? Although all of the above article has not yet been confirmed in law yet, it is general consensus that this is as it should be. Therefore, what you are asking for should be allowed and I am unsure why your Employer would say this and what they mean. Hope that helps. Regards, Lesley, Workline

    • Ian

      Hi Lesley. Yes, that is what I am saying. Apparently, their HR Consultant ( a large firm) have advised them that they are not currently complying with the legislation arising from the European WTD. I shall be raising it with my director next week, and ask for the specific clause they are referring to.

      Thanks for your reply.

      Ian

  • Angie Bradley

    Hi, can you please tell me if i am entitled to my holiday pay if i am off sick right before my holidays actually start.

    • lesleyfurber

      HI Angie, you would be entitled to sick pay but can choose to take holiday pay instead. Regards, Lesley, Workline

  • michael

    Hi,I have been off work through illness for almost 2 years.Because I am 63 and its very unlikely I will be returning to work because I am unable to do my job,my boss wants me to resign.Should I resign or should he make me redundant.I have worked there for 15 years.He has offered me 47 days holiday pay if I terminate my employment. What are my entitlements.What should I do.
    Regards Michael.

    • lesleyfurber

      Hi Michael, ideally you shouldn’t resign, your Employer should dismiss you on ill health grounds. (he does not have to make you redundant if he has no need to make redundancies). With regard to your holiday pay entitlement this is difficult as there is no clarity on this yet – you are eligible at least for the original statutory minimum holiday entitlement of 20 days per year to be carried over due to sickness, but it is not yet clear how long this ‘carry-over’ would continue for. I would ask him how he has worked this out, but it does appear reasonable. Good luck. Regards, Lesley, Workline

  • Ryan

    Hi I have been unable to work for a few weeks and I have approx another 4-6 weeks of recovery from a broken ankle still to go. I have booked holidays within this time prior to my injury. Obviously I would rather have my holiday pay at this time as it is more money. Am I still entitled to it and do I need to inform my employer that I still wish to take my holidays during this time?

    After reading this article I am pretty sure that the answer to both of my questions are yes, however I want to make sure that I am not missing anything,

    Thanks

    Ryan

    • lesleyfurber

      Hi Ryan, yes the answer to both questions is yes. Good luck. Regards, Lesley, Workline

  • lynn reddall

    hi i hope you can help me here…….. i have been off work since last october and i dont know when i will be able to return to work as i need to have another 2 operations. am i still able to claim any holiday pay for this year even tho i havent worked due to ill health? and also can work sack me because of not been able to work at the moment even tho i have been covered by doctors notes all the time?

  • Christopher Lunas

    Hi there, I work as a customer assistant at a well known supermarket and last month I had 3 days booked off (Friday 6th – Sunday 8th of July), on the first day I could already feel myself coming down with something but hoped it would pass so didn’t do anything about it, but then by the second day I was unmistakeably unfit for work, so, based on this an other articles I had read on-line, I phoned our designated sickness number as per the absence policy and informed my line manager that “as I wouldn’t have been fit for work had I not been on holiday, I needed to have the remainder of the holiday re-classified as sick leave so that I could reclaim the remaining 2 days of holiday at a later date”, he told me that he would put me down in the sick log, and I assumed that everything was taken care of.

    Several days later when I returned to work however, I was informed that according to company policy, I would only have been entitled to move the holiday if I had fallen sick and notified them as such BEFORE the holiday began.

    The following day I attempted to challenge that assertion by printing off relevant excerpts from this and the other articles I had previously read (specifically the 2nd paragraph under the heading “News on sickness during scheduled Annual Leave” from this page), and passed this to my line manager and later my stores personnel manager, and was told that they would look into it.

    Finally today, after not hearing anything back for several weeks I confronted my personnel manager, asking if she had heard back about it yet, and was told rather bluntly that according to the response she received, the EU case law I had referenced would only apply if I was a full-time employee (I work 27.5 hours per week) which as far as I can tell is complete nonsense as no article I have read regarding the case law in question mentions anything about it only applying to full-time workers.

    In all honesty, I really don’t know what I’m expecting you to tell me regarding my situation, but any advice you can give me would be greatly appreciated, so thank you in advanced for your time.

    • lesleyfurber

      Hi Christopher I’m going to reply by e-mail. Regards, Lesley, Workline

  • Connie

    Hi I have been off sick for nearly 5 months and have had to leave my job but my boss wont give me any holiday pay as says I am not entitled to this as law changed you don’t accrue holidays whilst off sick… I have worked for them for over 2 years and know that I should at least have another weeks holiday .

  • Moira Watt

    Hi, I had a weeks annual leave and became ill before returning, my doctor gave me a 2 week sick note and then I left the company, however my wageslip shows salary and the amount and the below that holiday pay and minus the same amount as salary?, why?, also SSP for what I would assume is (2 weeks, i.e 10 working days minus the 3 waiting days so 7 working days SSP?, just trying to understand it especially the minus on the salary/holiday pay part, can you help please.

    • lesleyfurber

      Hi Moira, thanks for your message. I’m afraid I can’t help you really as I don’t know how your payslip would normally look. You should be entitled to the annual leave ‘back’ that you ‘lost’ through being sick while on leave. And you should be entitled to be paid the SSP for all the days you are entitled to it (after the 3 waiting days) until your last day of work/notice. Hope that helps. Regards, Lesley, Workline

  • rjhedgie

    I am due to have an operation in a couple of weeks which will see me off work till the new year (all covered by a fit note). I have 4.5 days booked between chrismas and new year which are a combination of bank-holiday and dicretionary days, as I am part-time these are added to my annual leave entitIement.
    have been told by HR that I will not get these days back although I can have any annual leave I have booked back (to take at another time). Is this right?

    many thanks

    • lesleyfurber

      Hi, thanks for your message – you are entitled to the days back if they are part of the statutory leave entitlement (so that would include the bank holidays but probably not the discretionary days). So I think you need to talk to HR again so they can double check your entitlement. Hope that helps. Regards, Lesley, Workline

  • craig

    I have bemen off sick for 3 mont
    hs now and dont expect to return this year. i asked what will happen about my holidays i have left (10 days) my boss says theyd be carried over or i could be paid them does this mean ontop of my sick pay

    • lesleyfurber

      Hi Craig, yes you should be able to carry over these days as you have been off sick, or you could choose to take your holiday pay during your sick leave (so you would be paid holiday pay instead of sick pay) – you wouldn’t get the holiday pay on top of the sick pay I doubt. Regards, Lesley, Workline

  • moggy

    Hi, I have just had an operation [trapiziectomy] on my dominant hand and as my job involves heavy lifting/carrying/pulling/pushing, I have been told by my Surgeon/GP/Physio that I am to expect to be off work for a minimum of 3-4 months and due to the nature of my job it may be more like 5- 6 months before I return to work.I was told I could not use my Annual leave as part of my sick leave[ I am part-time] so I had to take all my annual leave before my Op.It is now 4 weeks since the Op. and have had a call from home [Oz] and have been told of a close family member’s terminal illness and they have asked for me to come home for their last Xmas/New Year with us as a family. I have checked my Companies Sickness policy and can find nothing relating to any such situation-I have to book my tickets asap. My GP has no problems with this-he has okay-ed me to fly and has deemed me totally unfit for work anyway during this period[ 6 weeks]I will be away. My question is;”Am I allowed to go home to Oz for 6 weeks while I am off long term sick?”

    • lesleyfurber

      Hi Moggy, thanks for your message. Yes, your Employer should allow you to do that, but I would advise you to tell your Employer that this is what you want to do as they should know. Regards, Lesley, Workline

  • mp

    hi, i’ve just been off work for 6 weeks having had an operation. I’ve got 10 days holiday which needs to be used by the end of December, and would have been taken if I had not gone off work for the op (albeit not booked before i went off) Prior to going off sick HR advised that i could not carry it over to next year and could not get payment in leiu of the holiday as they dont want to ‘set a precedent’ (they are paying me a full salary whilst off sick anyway). i go back to work on monday 2nd Dec, the office closes on Friday 20th, the person i work with goes on hol on 17th and as there is a rule that one of us has to be there it leaves me with 12 days to take 10 days hol. Pretty impossible, and aside from that I dont want holiday in December – I’ve had too much time off and want to get back to work – and nor will it look good if i go back for 2 days and then bugger off for the rest of december – not good working ethic. Can you advise where i stand on this please. greatly apprecaited

    • lesleyfurber

      Hi MP, ummm a difficult one. HR are right to say they cannot give payment in lieu for this (as holiday can only be paid in lieu if you leave, generally), but in the circumstances they should allow you to carry at least what is left of your statutory holiday entitlement over (28 days including bank holidays). You need to come to some agreement with them, perhaps you can take a couple of days holiday in December and carry some over? Hope that helps. Regards, Lesley, Workline

  • jc1972

    I know my question is not about sickness and holidays but holidays never the less. I started work for my employer at the beginning of July and have obviously accrued holidays up until now. Our holiday year is end of January to end of November as the company does not allow any employee to take holidays over Xmas and new year. I have not taken any holidays since I started, I always feel that it is not a good idea to request holidays in the first few months of new employment, so I am now owed 14 days which I can not take as the holiday year ends next week, and I havnt been able to take any over the last month or so due to colleagues being on the sick or taking their own holidays. Am I entitled to be paid for these holidays that I am unable to take as 14 days is an awful lot to lose and obviously at this time of year the extra pay would come in very handy. I was off sick from work last month due to an accident at work and I asked if I could put this time off down as holiday but H. R said that it couldn’t be done. I would just like to know where I stand in regards to this as I really don’t want to lose them.

    • lesleyfurber

      Hi Jc, I’m afraid you can’t be paid for untaken holiday unless you leave. Can you explain the situation to HR to see if they will at least allow you to carry over some of the holiday for a short period of time (i.e. to be taken in the next 3 months or something). Good luck. Regards, Lesley, Workline

  • M-C

    Hi, I was wondering if you could advise me. I was on one weeks annual leave during the summer on the Thursday I had an accident and tore my calf muscle, so was unable to walk. I went to A & E that afternoon and the following morning (Friday) I called my employers sickness line to inform them that I had had this accident, I was off for a week with the injury I returned to the work the following Friday when I provided my employer with a medical certificate which was dated for one week from the previous Friday. Am I able to claim back the days holiday that I was laid up and unable to walk during my leave?

    • lesleyfurber

      Hi MC, thanks for your message. Simple answer, yes, you are entitled to the holiday you ‘lost’ as you were sick while on leave. Hope that helps. Regards, Lesley, Workline

  • Mike Morgan

    Can I claim SSP and also have holiday pay at the same time.

    • lesleyfurber

      Hi Mike, I think that’s unlikely – it would be one or the other. Regards, Lesley, Workline

    • lesleyfurber

      Hi again, sorry what I said below was incorrect, I believe that yes you can claim both at the same time. Regards, Lesley, Workline

  • Dave Smythe

    I have been off work ill for 3 years and have been diagnosed with Bipolar II Disorder. During most of this time, I was paid half my salary by the insurance company under my employer’s PHI policy but the insurance company withdrew support a few months ago as they decided I was fit to return to my job. My employer disagreed and dismissed me on grounds of ill-health capability. They’ve said they’ll only pay me 1 week of accrued leave from 2012 and that for 2013, up to date of dismissal. Are they not legally obliged to pay me for accrued leave for every year I was ill. Help would be appreciated as things pretty desperate at moment. Thanks.

    • lesleyfurber

      Hi Dave, thanks for your message. If you’ve read the above article you’ll see that things are still not entirely clear as there has been no change in the law; however recent case law says that yes you should be entitled to leave while you have been off ill. But this only applies to the first 4 weeks of statutory holiday entitlement (each year). You probably have a case for an ‘unauthorised’ deduction of wages (as that is how this is dealt with at the moment) so it may be worth while ringing Acas to discuss this with them. Good luck. Regards, Lesley, Workline

  • Dave Smythe

    Thanks Lesley. I’m waiting for employer to respond to my query at moment. So, if I understand you correctly, they have to pay me 28 days for each year I was off ill and pro rata the 28 for part years? Also bank holidays form part of the 28? I did read article but wanted confirm my reading. Many thanks.

    • lesleyfurber

      Hi Dave, no, the legal position at the moment is that they only need to pay you 20 days (not 28 days) for each year you were off ill. Regards, Lesley, Workline

  • ange

    Hello,

    I have been on long term sick for 6 mths from july 24 2013, my company’s policy for sick pay is 5 mths full pay then 5 mths half pay, for my lenght of service , I have decided to resign as i also have another job ( have been off that one too but am going to return). my certificates will take me past my 4 weeks notice period. i’m currently getting half pay, so will i receive half pay also for my notice period or full pay. also accrued holiday, will that be full pay or half pay, not sure what i’m entitled to. thankyou .

  • ange

    Hello,

    I have been on long term sick for 6 mths from july 24 2013, my company’s policy for sick pay is 5 mths full pay then 5 mths half pay, for my lenght of service , I have decided to resign as i also have another job ( have been off that one too but am going to return). my certificates will take me past my 4 weeks notice period. i’m currently getting half pay, so will i receive half pay also for my notice period or full pay. also accrued holiday, will that be full pay or half pay, not sure what i’m entitled to. thankyou .

  • donna

    I have booked a holiday for may 2014 and the workplace is aware of the request from January. in march I was admitted to hospital for a major operation and am currently receiving ssp. I hope to return to work start of may. can the workplace refuse my holiday request for late may due to my sick leave

    • lesleyfurber

      Hi Donna, thanks for your message. Your Employer can refuse your holiday request if they give you the right notice but they shouldn’t do this solely because of your sick leave. Good luck with this. Regards, Lesley, Workline

  • nicky

    My son had to have an operation and needed 4 weeks off work. He had 2 weeks leave left, so as agreed with his boss, he used his 2 weeks holiday and 2 weeks sick. He had a medical certificate for the full 4 weeks and now his boss says he will only pay him ‘sick pay’ for the 4 weeks as the sick note overrules his holiday. Is this correct ? and has he now lost his 2 weeks holiday as a ‘new’ work year has started.

    • lesleyfurber

      Hi Nicky, thanks for your message. If they agreed he would take 2 weeks holiday then he should get that; can the GP/hospital issue a 2 week sick note instead to make things clearer? Thanks, Lesley, Workline

  • Susan

    I have a scheduled mini operation and am advised to rest for two weeks after surgery. A bank holiday overlaps with the rest period. Am I entitled to claim bank the bank holiday at a later date under the ECJ ruling or is this discretionary with my company? Your article above references annual leave but isn’t specific about bank holidays. Many thanks, Susan

    • lesleyfurber

      HI Susan, sorry for the delay in replying, I’ve only just seen this. As things stand you would have the right to the bank holiday at a later date I think. Regards, Lesley, Workline

  • tasha

    I have been off work sick since November 2013, I am losing my job next week as the employer needs the staff so is replacing me, have I still been accumulating holiday pay and am I entitled to be paid it when I lose my job? Thanks

    • lesleyfurber

      Hi Tasha, the answer is yes to both your questions. Good luck. Regards, Lesley, Workline

  • Barbara Seaton

    Hi I have an annual entitlement of 307.5hrs annual leave including bank holidays. I went of sick on 9th Jan and returned to work on 25th April. I had 67hrs annual leave left of the year 2013/14. My employer is now saying that they will deduct the annual leave I have taken from 210hrs that are deemed ‘statutory’ which means for being off 4 months I have lost 97.5 hrs is this right?

    • lesleyfurber

      Hi Barbara, thanks for your message. I can’t work out how 307 hours is made up, so what your full-time holiday entitlement is in days (it works out 11.8 hours per day’s annual leave??). Annual Statutory entitlement is 26 days. The entitlement that can be carried over for untaken leave because of sickness is 20 days per annum. Hope you can work it out from there. Regards, Lesley, Workline

      • Barbara Seaton

        hi Lesley thank you for your reply. I have 33 days annual leave I had 26 days and had 7 days left. My employers are saying I have to lose those 7 days as I was off four months is this right?

        • lesleyfurber

          Hi Barbara, yes I think they’re right. Regards, Lesley, Workline

  • Kev

    Hi,
    I fell ill on a friday night (at work) and was taken by a colleague to hospital where I stayed overnight. I was visited by my boss at 0300hrs as she was working nights herself so there was no doubt I was ill and not lying about it ! I was discharged saturday afternoon and was booked sick by my boss on the work computer system. I phoned my GP monday morning and got to see her Tuesday morning when she gave me a sick note. I was off work for 5 months in total and this whole period was certified except the period at the start between the Friday night and the Tuesday morning.
    I had annual leave booked months in advance to start on the sunday for 7 days. The Sunday and Monday were effectively uncertified by the doctor who issued the note on the tuesday, so I was covered by her note for the remaining 5 days of leave.
    When I returned to work after 5 months, I tried to claim the 7 days back, but my employer refused to give me the first 2 days of annual leave as this was not certified. They did reinstate the last 5 days.
    The employers policy states the first 7 days are self certified sickness and should be reported to your line manager as soon as possible (she saw me in hospital).
    The employer continued to demand a backdated sicknote to cover the 2 missing days for reinstatement of leave, so I had to go through hell to book 2 appointments with my GP to get a backdated note, but the GP was very reluctant to do this after such a long time (some 6 months after I fell ill). If she had totally refused to issue a backdated note, I would have lost 2 days hard earned leave. Do you know what the law is on this as I cannot find it anywhere? Thanks

    • lesleyfurber

      Hi Kev, thanks for your message. You basically need to follow your employers sickness-reporting procedures for the first 7 days, to be eligible. Regards, Lesley, Workline

  • kevin bourne

    I have been off work long time certified sick since mid January 2014. Am I entitled to claim the four bank holidays that I have missed to add to my leave entitlement for the rest of the year?

    • lesleyfurber

      Hi Kevin, thanks for your message. Yes you are entitled to claim these back. Good luck. Regards, Lesley, Workline

  • Jim

    Hi been of on sick leave for a few months and have asked my employer if I can use 2 weeks annual leave instead of sick pay. Going on holiday that was pre booked about 8 month ago.

    I have been told by my manager if I go on holiday that he will stop my company sick pay and put me on SSP. Company pay is up to managers discretion. Can he do this? He said If I use 2 weeks annual leave I would have to sign my self off take the holidays, then sign my self on as being unfit for work again. To do that I have to phone the company remedy line for this and he would only pay me SSP not company sick pay after this. Is this true? Do I need to do this? Seems to me that I would then have a second absence. If I don’t go on holiday they will still pay my company sick pay. Confused.

    • lesleyfurber

      Hi Jim, thanks for your message. Your employer is not correct, if you are off sick you can take annual leave you have accrued and should be paid at your normal annual leave rate for this. You should not need to sign yourself off and back on again. Hope that helps. Regards, Lesley, Workline

  • Monica

    hi, my husband had a accident at worklast Wednesday (17.07.2014), he get a one week off sick note but we think he will be off sick for a longer after his surgery tomorow. Next Wednesday (23.07.2014) we are going on 3 weeks holiday that we booked about 3 months ago. How he should deal with his company now? if we still can go? Can he go on his holidays even he is off sick? HELP!!!!

    • lesleyfurber

      Hi Monica, I’m really sorry but I’ve only just seen this message. If you still need any help, let me know. Regards, Lesley, Workline

  • Vicky

    Hi, really need some advice. I’ve been off sick since November 2013. I was bullied in the work place and don’t feel I will ever be able to return to that environment. I been very open regarding this and have told OH and management, but also highlighted that I felt that I could return to work just not with my previous seniors as I am still having panic attacks when I think I have seen one of my seniors. My GP agreed that she would sign me fit to return if they found me a placement outwith my department. They have found a placement and HR told me about this on 23/07/14, but there was no clear start date. My GP works part time so I was unable to contact her. Start date was agreed on 25/07/14 at OH review, start date 1/08/14. Today I got an e-mail/was cc-ed into an e-mail from AHP lead stating that I didn’t need to be signed fit to return to work and that they would put me on annual leave from the 14/07/14 instead of sick leave. Can they do this? I still haven’t been able to discuss the return with my GP, I only met with OH on 25/07 and they only told me there was a job on the 23/07. I know I have a lot of A/L but I am also pregnant and the placement they have found for me is 2 hour drive any so I think I will need to use A/L as I think I’m going to be exhausted with the travel. All help most appreciated.

    • lesleyfurber

      Hi Vicky, thanks for your message. Did they suggest you go on annual leave because you were about to run out of sick pay, as that would be logical? They can certainly suggest you use some of your annual leave, especially if you are going on maternity leave soon. Good luck. Regards, Lesley, Workline

      • Vicky

        No, I was on half pay, but that’s not why they suggested it. I think they just wanted me to use up my annual leave even though I was signed off sick. HR ended up phoning me and I felt so bullied into it that I felt I had to agree to it. They have now found me a placement in a different department which I started last week. When I discussed A/L with my new senior she suggested a few days I could take, but when I e-mailed HR and cc-ed the manager into this, the manager replied and said that I was to keep A/L to a minimum during the placement. I’m really confused now as my due date is in December and even with the A/L they have taken off when I was signed off sick, I have weeks of A/L left by their calculations and HR said I needed to use all my A/L before my mat. leave. How can I use A/L when manager won’t authorise it?

        • lesleyfurber

          Hi Vicky, you need to see if you can get HR and your Manager to talk about this. I can see both their points of view – that the Manager would want you to settle into the new job, and that HR would want you to use up your leave before maternity… but clearly someone has got to make a decision about what you should do. Good luck. Regards, Lesley

  • Bernadette galea

    Hi there, I have been off work for three months due to hyper mobility of my spine, back pain and sciatica. I have seen a specialist and am undergoing treatment, physio and exercise. I am due back in work on the 11th august (phased return). Today i had a meeting with my manager who informed me that the annual leave i had booked at the beginning of the year will not be credited back to me because i went on my holiday! I assumed this not to be the case as i was covered by a sick note? I work for Cheshire east council as a support worker and the sickness was work related because of the moving and handling, causing discomfort repeatedly. Can they refuse to credit my annual leave back to me because i went on holiday with my family? Please advise. Regards

    • lesleyfurber

      Hi Bernadette, thanks for your message. If your leave was booked, but then you went off sick, your leave should be credited back to you (if you were unfit to work, but fit to go on holiday). Good luck. Regards, Lesley, Workline

      • Bernadette galea

        Hi there, thank you for your reply. I believed i was entitled to the credited hours but working for Cheshire council and knowing that they withhold entitlement advice, i wanted to double check before i confront them about returning my holiday credits. Thanking you in anticipation of a positive outcome. Regards Bernadette

        • lesleyfurber

          No problems, good luck! Lelsey

  • Bruce Lawson

    hi my is bruce i have been of work for 2 year as i went deaf and my job was answering fone i have had a cockulaer implant still no joy i can here a littel but not the fone my work have let me go and gave me 1 weeks holiday pay is that right ?

    • lesleyfurber

      Hi Bruce, thanks for your message. No, that’s not right, you should have accrued 20 days per year (the original statutory minimum holiday) so should be paid for all of that (unless you have taken any ‘holiday’ time during your sick leave). Good luck, Regards, Lesley, Workline

  • karen r

    Hi, i have booked 2 wks leave end of august but now had a letter to have an operation in my second week. Am i able to not take the second week as leave but declare it as sick leave? Therefore taking my leave once better. Thanks Karen

    • lesleyfurber

      Hi Karen, yes the 2nd week should be sick leave to you still have the holiday to take. Regards, Lesley, Workline

  • Kenny Harvey

    Hi,
    I was off sick in April to July 2014. My annual 3 week annual leave period was in late May into mid June. My doctor said that I was fit to travel on my pre-booked 10 day holiday (in the `middle` of my 4 week sick period) as long as I was well `medicated` and was able to walk about the plane and stop -off airport terminal but under no circumstances was I fit for work. He said that the holiday away would aid my recovery both physically and mentally My employers deemed my doctors comments as me being fit for work at that time even though I was covered by a sick line and processed my holiday away as annual leave and are refusing to give me back my 3 weeks annual leave which I feel that I am entitled to–Am I correct in assuming that I am due it back or is this a grey area.
    Kenny Harvey

    • lesleyfurber

      Hi Kenny, yes I would agree you are due it back – however you can choose to take annual leave rather than sick leave (which people may choose to do if they were on SSP payments or low sick pay and the annual leave would be paid at a higher rate). Assuming you did not choose to do this, then I would go back to your employer to explain this and see what they say. It is a confusing situation regarding sick leave/annual leave as nothing as yet has been confirmed in legislation, but there is a large body of case law that supports it. Good luck. Regards, Lesley, Workline

  • Katarzyna

    Hi, I was off sick for 25 working days, but unfortunately abroad. I provided to my employer fit notes from first day and did translate it. But my employer susspended my ssp and pay. They told they need fit note from UK -GP english one, bcoz Company is in UK and needs UK documents ( regulation 1992 p14 HMRS – they told). After back to UK no doctors want to give me fit note…and im not surprise, bcoz the doctor didnt even seen me. Pls advice what to do. Thanks.Kat

    • lesleyfurber

      Hi Katarzyna, thanks for your message. Your GP in the UK should give you the fit note, if you can show them the ones you have from abroad. Regards, Lesley, Workline

      • Katarzyna

        Thank you for message, yes I have got fit note from my doctor, but many people have problem to get it one… the uk doctor is in difficult situation…he/she didnt seen the patient during the ilness…how he can give fit note then? its something wrong with this rule….isnt?
        what do u think?

        • lesleyfurber

          Hi again Katarzyna, I came across the answer to this the other day when I was doing some other work. The HMRC publish a Employer Helpbook E14 which is here http://www.hmrc.gov.uk/helpsheets/2012/e14.pdf
          At the bottom of page 10 it talks about ‘Employee provides you with a non-UK medical certificate’ which I think basically says that the Employer should arrange the translation of the certificate. Hope that helps. Lesley

  • chris

    Hi, I’m self employed and worked for the same company for 7 years now. although I am “self employed” I have checked the gov.com website and had a look at the employment status tool which indicates I am an “employee”. Am I able to back claim and holiday and sickness pay?

    • lesleyfurber

      Hi Chris, thanks for your message. If your Employer won’t acknowledge your ‘employee’ status, then I’m afraid the only way you can claim these is to take a case to an Employment Tribunal to prove that you are an employee (only a Tribunal can actually decide this). If they found you an employee then you would be entitled to these benefits. But obviously that may be a difficult/awkward thing for you to do. Good luck. Regards, Lesley, Workline

  • Maria

    Hi there,I’ve been off work since the end of February,and I just wanted to know if I will lose my holiday entitlement or can I get it as I’ve been told I won’t be able to return to work for another couple of months. Many thanks Maria

    • lesleyfurber

      Hi Maria, you are entitled to the statutory holiday entitlement you have accrued for the period you have been off work sick. Good luck. Regards, Lesley, Workline

      • Maria

        Thanks for the swift reply,now I’m worried how I go about it as I find it hard to talk things over with my HR manager,even though he is great,but the company I work for,try their best to not to pay out if it’s able too,

  • carol hogarth

    I was on sick leave but had booked 10 days holiday, when i went back to work they had paid me holiday pay not ssp and have said i cant have my holidays back is this correct

    • lesleyfurber

      Hi Carol, no they are not correct, you should get your holidays back. Good luck. Regards, Lesley, The HR Kiosk

      • carol hogarth

        what exactly do I quote at them, is it employment law?

        • lesleyfurber

          Hi, it’s accepted case law although the legislation has not been updated. You can see this on the Gov page here https://www.gov.uk/taking-sick-leave
          Regards, Lesley

  • Margaret Dickson

    I have been on long term sick and my manager has now applied for my annual leave to preserve my pay.Do ined to supply a GPs fit note for this period and can I actually go on a holiday during this time.

    • lesleyfurber

      Hi Margaret, the answer is probably yes to both questions – do tell your Employer if you are going on holiday though so they are aware. Good luck. Regards, Lesley, The HR Kiosk

  • Clare Doherty

    Hi, I was off sick (in hospital) for a few days in May including the Bank Holiday Monday, I was paid in full for the sick time as that is in my contract. However should I be given a day in lieu for the bank holiday? (I work full time).

    • lesleyfurber

      Hi Clare, basic answer is yes, you should get a day in lieu for the bank holiday. Regards, Lesley, The HR Kiosk

  • Marie Hamilton

    Hi, I have been on sick leave since October 2012 uncontrolled epileptic seizures (I work in a call centre so can’t take calls), I was paid full salary for the first 6 months then have been on the company insurance policy since at half salary. Last year they paid me my full holiday pay in cash however when I asked them about it earlier this year they said I would not be entitled to any holiday pay this year. Is this correct and if not what rate should they pay me – full pay or half, as that is what I get via the insurance policy? Thanks

    • lesleyfurber

      Hi Marie, thanks for your message. As far as I am aware you should be entitled to holiday pay but it will be paid at your (now) ‘normal’ weekly pay, so that would be half pay. Good luck. Regards, Lesley, Workline

      • Marie Hamilton

        Thanks, my manager said he checked with HR and they said no, can you suggest any legislation I can quote to them to make them give it to me? Appreciate your help.

        • lesleyfurber

          Hi again, sorry I didn’t see your reply. There is no legislation as such yet, but there is case law which is described as above. So, you are due your holiday entitlement for this year, but they do not need to pay this to you (unless you leave their employment). They should ‘roll’ your holiday entitlement over to next year. Regards, Lesley

          • Marie Hamilton

            Thanks again, I don’t think I’ll be going back for a while, maybe years so look forward to a few months off, if they add it all up waiting for me to go back!

    • lesleyfurber

      Hi Marie, it’s Lesley again – sorry I’ve just realised I may not have been clear in my reply. You are due holiday entitlement for this year, but this should not be paid (unless you leave the company) – it should be rolled over into next year. The fact they paid you for it last year is actually incorrect of them! Hope that makes sense. Lesley, The HR Kiosk