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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47368
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a small employer and one of my employees is leaving us

Resolved Question:

I am a small employer and one of my employees is leaving us in a week's time. Another employee has an agreed six weeks leave for medical reasons. I have been able to fill the vacancy giving the new employee the same number of hours per week as the original employee plus temporarily the hours worked by the staff member taking the medical leave(for a period of six weeks). I have now been informed that the employee has had her operation postponed, possibly until after Christmas and wants to return to work. Although I have filled her hours already am I obliged to take her back immediately or only after the six weeks she has booked off work. I have offered her one day per week rather than her normal hours of one and a half days but she does not see why she should lose any hours. What is the legal position as she also informs me that she will need the final week of the six weeks off as her husband has booked a holiday!
Thank you
Nigel Drummond
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. What type of leave had she agreed - was it holidays using her annual leave allowance?

Customer: replied 9 months ago.
No, it was not holiday allowance as she has used her full annual allowance already. It was agreed unpaid leave to have surgery on her knee and subsequent recovery time.
Expert:  Ben Jones replied 9 months ago.

Hi there, you can treat the agreed leave as a contractual variation, which basically says that you have both agreed for her to take the time off work unpaid for the specified period. So if it was agreed by both of you, if one party wants to change it they should only be able to do so if the other party agrees. You can see it as a kind of short sabbatical leave, where the employee is allowed time off work but they can only return to work if there was an agreement allowing them to do so, if you agree to it or if the agreed period expires (i.e. at the end of the 6 weeks).

So if she wants to break the agreement and return early but you have already made plans to cover for her absence and therefore do not agree to an early return, you do not have to allow her to do so. If you do then it can be n your terms. After all you do have a business to run and you have gone out of your way to accommodate her request for leave so if she tries to vary the terms of such agreement it can be done but only if it works for you and on your terms. Otherwise, you can leave it as it was originally agreed, i.e. for the full duration of 6 weeks.

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

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