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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work for the NHS I was off work sick for 9 weeks and returned

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I work for the NHS I was off work sick for 9 weeks and returned to work. I usually work 37.5 hours per week but the first week back worked 27 and the second 29 using my annual leave to make up the shortfall. On the third week they send me to occupational health department for a return to work assessment. After examination the Doctor said I was only fit to work 4 hours a day until September. My manager is now making me take my annual leave for the time not worked ie, for every 2 weeks I work I loose a weeks annual leave. Is this legal as if I was still off sick full time I would be being paid for all my hours sick? Thanks Deb
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does your contract say anything about this?
Customer: No I work in the operating theatre department and I have found out during having physio whilst talking to another member of staff who is only allowed to work 3 hours aday until fully recovered that the trust is paying her in full and she is not having to use her holiday for the time not worked. When I mentioned this to HR department they stated that there is no trust policy on this matter and that it is up to the manager in each department as to what they choose to do. Our manager is not very understanding etc and so anybody on back to work after sick is required to use their annual leave for the deficient hours Deb
Ben Jones :

Hi, sorry I was offline by the time you had replied. Under law, specifically the Working Time Regulations 1998, an employer has the right to force its employees to take their annual leave on specific dates chosen by the employer. All that is required is a minimum notice period to be given by the employer and as long as that is satisfied, the employee can be forced to take their leave whenever the employer chooses. The notice that is required must be at least twice as long as the holiday to be taken. So for example, if the employer wants you to take 2 days off on a specific date, they must advise you of this at least 4 days in advance of this. If they have done so, then they can force you to take this time off from your annual leave entitlement.

In your case there is an ongoing request to take time off from your annual leave and as long as this is not a continuous period of time off (i.e. unbroken by any other working days), then each one would be treated separately and the notice periods that apply would be quite short. So let’s say in a week’s time the employer wants you to a day’s annual leave and a few days later they want you to take another one. For the first one they only need to give you 2 days’ notice and the same would apply for the next. If this is a week away then if they tell you now then they would have satisfied the legal requirement of giving you the minimum notice period required.

So I am afraid you can be forced to take your annual leave on days chosen by the employer – it may appear unfair but it is legal.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer: Not really answered as part of the question relates to employees of the same overall employer ie the trust being treated differently in relation to sick. As stated I am prohibited from working full time by occupational health as the doctor as deemed I am not fit for full time. As stated some managers are allowing their staff to keep annual leave whilst my manager is deducting leave for the time that occupational health doctor states I am not fit to work. This relates to sickness and equality for employees from one overall employer
Ben Jones :

I am afraid it does not matter if others in the same trust are treated differently - this is an unconditional legal right on the part of the employer and if they wanted to they can apply it to part of their workforce and not to others. They do not have to treat everyone the same in that respect

Ben Jones :

t welcome, all the best

Ben Jones :

sorry ignore the last line

Ben Jones :

I know this is not necessarily the answer you wanted to hear but I am afraid it is your legal position and I have to be honest

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer: Thanks could you just clarify one little detail in that as my annual leave is calculated April to April and I have already taken some that I have accrued. If occupational health keep me on short hours can they insist I use annual leave that technically I do not have in that I will have not worked enough to accrue it as my allocation is for the heat and we are only a third of the year so far. Thanks Deb
Ben Jones :

Hi Deb, your employer can only force you to take annual leave which you have accrued in the current holiday year. They cannot make you take leave which has not yet accrued and then claim that you 'owe' them that time. If you have not accrued enough leave to be able to take the time off as holidays then you will either have to remain on sick leave for that time and get pay the sick pay allowance you are due, or they will have to agree with you to reduce your pay to reflect the hours you are actually working. However, they cannot force you to do this unless your contract allows it and this is something which must be agreed with your consent otherwise if they force you to do this it may amount to breach of contract on their part. Hope this answers your query?

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