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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked for my employer for over 13 years. I have been signed off sick for a long term illness just before Christmas, therefore I cannot benefit from the public holiday as well as some closed day offered by my employer. When I returned back to work, I have requested for these days (about 7 days in total) to be accrued. However my employer has refused to do so by saying that they didn't count these days towards my sick leave, therefore I have deemed to have had them as public holiday. I have asked for clarification as I don't quite understand on what ground these days cannot be counted as sick leave as how it should be. They failed to reply back to me. Please could I have some clarification as whether I can or cannot have the public holiday accrued whilst on sick leave as I don’t seem to find this information anywhere? (ACAS mentioned Pereda case to me, is it relevant to my case? )
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Has the holiday year which these days fell in now passed?
Customer: replied 1 year ago.
Hello Ben, Not yet. Our holiday year starts from 1 August and finishes in end July.
Expert:  Ben Jones replied 1 year ago.
Thanks. Do you get only the statutory entitlement to holidays or does your employer give you extra on top of that under contract?
Customer: replied 1 year ago.
I have 28 days annual leave (23 days plus 5 days awarded to me for serving the employer for more than 5 years) and 12 days fixed holiday (8 public holiday and 4 closure days), as defined by my contract.
Expert:  Ben Jones replied 1 year ago.
ok thanks leave it with me please, I will reply this evening as currently in tribunal and then have to travel back too.
Customer: replied 1 year ago.
No problem. Looking forward to your reply. Many thanks!
Expert:  Ben Jones replied 1 year ago.
Hello, I managed to get a small break to deal with this. There have been a number of high profile cases dealing with holidays and sickness absence recently. Pereda is one of them and that was heard in the ECJ but there was also Stringer in the UK. It is important to note that they all dealt with statutory holidays, i.e. your statutory holiday allowance. If you are a full time worker this is 5.6 weeks a year (or 28 days). Anything on top of that is a contractual matter and will not be subject to these decisions. If you get more, like in your case, it can be assumed that the first 28 days of your holidays taken in a year will be your statutory allowance and anything after that is your additional contractual allowance. One of the key issues for employers is whether workers who fall sick during their statutory holiday can cancel that holiday and choose to take it at a later date. The ECJ's decision in Pereda made it clear that a worker who is incapacitated before a period of pre-arranged statutory holiday should have the right to reschedule the holiday for a later date. Further, if the worker remains sick until the end of the relevant leave year, they should be allowed to reschedule their holiday in the next leave year. So you need to look at how many days’ holiday you had taken before these specific days which you are claiming about. If you had already taken 28 days’ holiday then these days would have been your contractual entitlement and not subject to these laws so the employer dos not have to allow you to take the leave at another time or allow you to accrue it. However, if it was within the initial 28 days then it would be statutory holiday allowance and I you were unable to take those days because you were on sick leave then you should be allowed to take them at a later stage after you return to work and are in a position to take holidays. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
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 1 year ago.
Hi Ben, thank you for your reply, it's brilliant!I still have a couple of concerns hope you could also help to clarify:
I haven't touched any of my holiday before those specific days so according to your reply, I should be able to accrue them. I managed to get some reply from our HR, which says:
"Annual leave is essentially broken down into 3 types:
· 20 working days which comes from the Working Time Directive (governed by Europe) and relates to days of annual leave that you can choose to take when you wish
· 1.6 weeks (bank holidays) which comes from the Working Time Regulations that are UK law
· Contractual, which is any additional annual leave given by the organisation
The case that you quote, Stringer v Pereda relates to the 20 days annual leave entitlement from the WTD and therefore applies only when you have booked annual leave and are unable to take it due to sickness.
In your particular case, you have been paid at the normal rate of pay during the Christmas period and these days were not added to your accumulative sickness total. You have therefore been paid for these days at your normal rate, so there has been no unlawful deduction of earnings."Is it true what they said about "Stringer v Pereda only relates to the 20 days annual leave entitlement from the WTD and therefore applies only when you have booked annual leave and are unable to take it due to sickness"?Another concern is I am aware that under regulation 15(2) of the WTR 1998, an employer can give notice to a worker specifying dates on which statutory holiday must be take, it conflicts the cases you quoted. How do I get around it?Many thanks.
Expert:  Ben Jones replied 1 year ago.
Hello, there is truth to what the HR reply says. Sorry if I had misunderstood your original query, I will try and explain a bit better below. Employers are only required to allow workers to reschedule sickness-affected statutory holiday (and, strictly speaking, only the minimum four weeks' leave contained in regulation 13 of the WTR 1998). The rights under Pereda only apply if you had gone on sick leave before a period of pre-arranged holiday. So in effect you must have booked days off as holiday in advance, then become incapacitated and been unable to take these holidays due to being on sick leave. If you had no pre-arranged holidays before going on sick leave then you would not have been prevented from taking the holidays as they were never arranged. So if you had not pre-arranged any holidays the question is can they force you to take your holidays on random days whilst you are off sick and discharge their duty to allow you to take your entitlement and pay you for it? Under regulation 15(2) of the WTR 1998, an employer can give notice to a worker specifying dates on which statutory holiday must be taken. However, the Pereda and ANGED cases make it clear that it is against the European Directive for employers to be able to force workers on sick leave to take statutory holiday against their wishes. However there are very complex laws about how far the UK courts can enforce these decisions and even though it is European law it is not directly applicable in the UK. So saying it is against the European Directive does not mean it is against UK law. What the employer could try and do instead is force you to take your holidays during sick leave but stop any sick pay during that time, pay you your full holiday pay and the restart sick pay one the holiday finishes.
Customer: replied 1 year ago.
Will I be able to argue that they haven't give me any notice
therefore not right to do so? Actually what happened is when I first check with HR on my return back to work, they said I could accrue those days but a week later, they changed their mind and said no.
Expert:  Ben Jones replied 1 year ago.
Yes you can - they must give you notice which is at least twice as long as the holiday to be taken (e.g. 5 days holiday you must be given 10 days notice)
Customer: replied 11 months ago.
Dear Ben,I emailed my employer as advised, they reply back as below. I'm bit confused that they said "Your contract states that bank holiday is part of your annual holiday entitlement therefore you were clearly given notice about the requirement for you to take these days as part of your holiday entitlement, and this satisfies the notice provisions which you refer to under Reg 15 of the Working Time Regulations." I understand the closed days is contractural that they don't need to give any notice. However does it apply to bank holiday as well? In your view, if I want to make it to the tribunal, what will be the winning chance?Here's the reply from them:
The University has chosen to give you paid leave for bank holidays, in addition to the 20 days’ Working Time Directive holiday that you can book at any time of your choosing, as evidenced by your contract of employment, which provides that bank holiday forms part of your annual holiday entitlement. The University has also chosen to give you paid closed days, when the institution is shut. The entitlement to accrue days and take them at another time if you fall sick does not apply to the additional 1.6 weeks/8 days holiday (the bank holidays) nor the University closed days.
"Your contract states that bank holiday is part of your annual holiday entitlement therefore you were clearly given notice about the requirement for you to take these days as part of your holiday entitlement, and this satisfies the notice provisions which you refer to under Reg 15 of the Working Time Regulations. With regards ***** ***** closed days, they are contractual elements of your annual leave, and so there is no requirement to give notice in relation to those."Many thanks!
Expert:  Ben Jones replied 11 months ago.
Hi there, in law a bank holiday is no different than any other day in the year. The employer could allow this as time off but they could easily treat it as a normal working day too. It is normal for employers to give workers bank holidays off and include these days as part of their holiday entitlement which they are entitled to by law. So the common position is that a full time worker is legally entitled to 28 days holiday a year and the employers gives them 20 days they can choose and includes the 8 bank holidays as the rest, making a total of 28 days off. If your contract states that you are given bank holidays as part of your holiday allowance then that means you are automatically expected to take the time off then and there is no specific notice required by the employer to make you take the days off – the notice has been given by including this in the contract. So assuming this was the case here they are correct unfortunately and I would not advise tribunal

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