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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44923
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been on ssp for 18 weeks. It started in July, but have

Customer Question

I have been on ssp for 18 weeks. It started in July, but have been back to work on occasion on a phased return to work basis, however the problem re-occurred and have had to be off sick on a recurrent basis. I was off work for the week commencing 17th December for a week, but did not put one in again until 2nd January 2013 as Christmas week was a compulsory holiday and the days were taken from holiday entitlement. I am contracted to work 37.5 hrs per week under normal circumstances, but have since found that I have only been paid for 22hrs for that week. Can my employer assume a different set of hourly rules for holiday entitlement due to my time off work? If so then what are the rules?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know what does your contract say about your holiday entitlement?
Customer: replied 3 years ago.

FOR BEN JONES ONLY


Unfortunately, i do not have a copy of my staff handbook with me, but I will get one next Tuesday. As I remember, it states that I have 20 days entitlement after a full year's service, which I have. As mentioned above, the days required to make Christmas week a holiday as the Company was closed, were taken from this entitlement, also Bank holidays were involved, but it would seem that they have paid me short hours because of my absences during sick and phased return. I will be able to furnish you with more precise information when I receive my pay slip today in the post, (hopefully!).

Expert:  Ben Jones replied 3 years ago.
I'm just away from my pc right now but I will be able to pick this up soon if thats OK?
Customer: replied 3 years ago.

yes, no problem.

Expert:  Ben Jones replied 3 years ago.
Thanks for your patience. If you are contracted to work a 37.5 hour week and you are off on holidays for that period then you should be paid the equivalent of a normal week's pay. This right comes under regulation 16 of the Working Time Regulations 1998.

If you work normal working hours and your pay does not vary with the amount of work done you are entitled to the "amount which is payable... if you work throughout your normal working hours in a week" ( as per section 221(2), Employment Rights Act 1996). This would usually mean your basic salary without any additional bonuses or commission payments. The fact that you have been off on sick leave prior to that will not affect your pay.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 3 years ago.

FOR BEN JONES ONLY


Thank you for your reply, but sorry for the inconvenience as I have one more related question. I received my pay slip in the post and what they have seem to have done is, not pay me full hours, but aggregated what I worked on phased return and used that to calculate what they owe me. They have paid me 10.5 hours for the bank holidays and 9.5 for the remainder of the days. In actual fact if they are liable to full pay then I should be credited for 52.5 hours as I was off for 7 full days including the Banks. Is that correct?

Expert:  Ben Jones replied 3 years ago.
if you were off for 7 working days then you need to be paid accordingly and that would increase your pay entitlement for that period. What you could have done instead is used the law in relation to holidays and sick leave and told your employer that as you were off on long term sick leave you did not want to take your holiday at that time but remained n sick leave and carried it forward to a time when you could have taken it when you were back at work. That would have then still entitled you to the full pay for that period
Customer: replied 3 years ago.

BEN JONES ONLY


 


I simply didn't renew my sick note for that period as I knew that the time off was booked and there were a number of public holidays. I renewed the sick note from 2nd January. I take it then that they cannot aggregate my hours to when I was back on phased return and being paid only for the hours spent at work? They have also received a GP report stating that my problem can recur and that, when I feel fit enough, a phased return is advisable.

Expert:  Ben Jones replied 3 years ago.
The key is what you are contracted to do and whether the phased return changed your contract, which t be honest s unlikely. If you are guaranteed hours per week by contract then that is what you need to be paid if you are off work
Customer: replied 3 years ago.

FOR BEN JONES ONLY


 


Thanks so much for your answers and patience. I will most likely return to work next Tuesday where I will view a copy of the staff handbook.


 


Is it ok to ask any relevant questions should they arise?


 


Chris

Expert:  Ben Jones replied 3 years ago.
yes please get back to me any time. In the meantime please take a second to leave a positive rating for the service I have provided you with as that is an important part of our process. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44923
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

FOR BEN JONES ONLY


 


Relating back to our former correspondence, I found this on the internet


 


"The ECJ ruled on 20 January 2009 that statutory entitlement to paid annual holiday continues to accrue during sick leave, even if the employee is on sick leave for the whole year. In addition, workers can take statutory annual holiday at the same time as sick leave and receive payment at the normal rate"


 


However, I looked at section 222 of the Employment Rights Act 1996 and it seems to mention that the employer can take into consideration the last 12 weeks pay to calculate how much they have to pay in respect of wages claims. I am not paid anything on absence be it authorized (ie minor sick leave or indeed, any sick leave as far as they are concerned, as ssp is paid by them) or obviously, unauthorized. My sick leave has been intermittent, that is I have returned on phased return, but then been off sick again with the same problem and the ssp is paid as part of the smae period of sickness, ie I am in the same 28 week period, but not taken all at once.


 


Can they therefore refer to section 222 of the Act and indeed sections 223, 227 and 228 with regard to my case even though I am on a permanent contract and just go back to the prior 12 weeks working time in calculating how much to pay me for holidays taken (these last ones, as mentioned were compulsory as the Company was closed for the Xmas period) and had to be used as they state you cannot carry over holidays into the New Year? Their year end is 31st December


 


 


Expert:  Ben Jones replied 3 years ago.
Hi, section 222 is there to calculate holiday pay when the employee is actually working at their hours are not regular. It is there to give a way to calculate the average number of hours they would be working in order to calculate what pay they should get.

This is not the same as being off sick. You continue to accrue holiday rights during that time as if you had not been sick so need to be paid as if you had not taken sick leave.

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