Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. When you say you have not taken holidays for this period, what period are you referring to exactly please?
Thank you. Holiday continue to accrue whilst you are on long term sick leave and this has been confirmed through some high profile cases like Stringer and Pereda, amongst others.
So whilst you have been on sickness absence you would have continued to accrue your holidays as normal and if your employment is to terminate then you are due whatever holidays remain outstanding. The employer will have to pay you for these as part of your termination payment, or with sufficient notice they could ask you to take these as part of your notice period although you should still get paid as normal for them, rather than at the SSP rate.
This is your basic legal position. I have more detailed advice for you in terms of the notice they must give you in the event they want you to take the holidays as part of your notice period, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. So as mentioned an employer can force you to take your accrued holidays as part of your notice period. They may have this right under contract where this is contained as a specific term and if hat is the case then they do not need to give you any specific notice period to do this. If, however, no such clause exists then they can rely on the notice provisions under the Working Time Regulations. These state that the employer must give you notice which is at least twice as long as the holiday to be taken. So as an example, if you have 10 days of holiday to take, they must tell you at least 20 days before it is due to be taken that they want you to take it. If they do not satisfy the notice provisions then they cannot force you to take it and they must pay you for your notice period and then on top of that pay you for the annual leave.
One important thing to note about the pay you are due during your notice period is that you have to compare the notice period you are due under law (1 week for every full year of service up to a maximum of 12 weeks) and the notice period you are due by your employer (i.e. on dismissal rather than on resignation) on termination under contract. If the contractual notice period is the same as the statutory notice period due then you are entitled to full pay for the full notice period, even if you have exhausted your entitlement to SSP. However, if the notice period under contract is longer by at least a week then you are only due whatever you are entitled to in terms of pay t the time, so if you get SSP it would be that or it could be nothing if you have run out of SSP. So it could be that you are due full pay for the notice period and then on top get paid for the outstanding holidays if thy have not given you sufficient notice for you to take them as part of the notice period.