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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47360
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I recently returned home from Spain and the last 3 days of

Customer Question

I recently returned home from Spain and the last 3 days of my holiday I was ill. I was expected to return to work last Wednesday but still felt under the weather and I contacted some colleagues to ask for a supervisors number so I could update them on what's happening. I managed to get hold of a supervisor after visiting the GPS in which they recommended further time off.I called on the Wednesday, Thursday and Friday updating then I was still unavailable for work and they were fine about it. Still feeling ill I went to work today and the supervisor informed me I cannot ask for my holiday days I was sick for back as I never called them while I was on holiday.The doctor can provide a statement agreeing that I must have been ill while on holiday and I stated this but they continue to deny my rights to claim the 3 days back.From a legal stand point what are my rights?Thanks in advance.
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.

Hello how long have you worked there for?

Customer: replied 11 months ago.
I'm in my probation period as a full time employee. Probation is 6 months Im in my second month. I had done 1 year as a temporary workers prior to this.
Expert:  Ben Jones replied 11 months ago.

Many thanks for your patience. There is no specific legislation dealing with this but usually when you have pre-booked holidays and become ill whilst you are officially off on holiday, you should be allowed to take these at another time so that you do not lose your holidays for being off ill. Whilst the employer can request that you are to call them if you are off sick, there should be a specific policy requiring you to do so. If there was no specific policy which said you must do so, they should really be looking at putting you on a sick for these days and letting you take the holidays at a later date instead. If they refuse the only option available for you is to pursue them for the equivalent of the pay for those few days. You cannot claim constructive dismissal as you need 2 years for that so compensation for the ’lost’ days is the best you can hope for.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow if you are going to take this further, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

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Customer: replied 11 months ago.
The further advice would be brilliant. Where would I find this specific policy, my contract?
Expert:  Ben Jones replied 11 months ago.

Thank you. Yes the policy would be in your contract or there could also be a separate sickness absence or holiday policy – ask your employer to direct you to it if they have one.

If they do not pay you then this potentially amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.

In order to try and resolve this, you can raise a formal grievance first, then the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.

If the employer does not return the money as requested, the following options are available:

1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.

Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.

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