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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 30929
Experience:  Over 5 years in practice
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I am currently on long term sickness and am having tests to

Customer Question

I am currently on long term sickness and am having tests to determine if I have Lupus
I have exhausted Occupational sick pay and am about to go onto SSP
I have at least 2.5 weeks holiday accrued so far for this holiday year and have asked that I take this instead of being paid sick pay
I have been told No
I referred my HR department to the Gov.uk website which states employers can choose to take holiday pay instead of sick pay ie if they will not be paid as much
My HR are now saying that only applies in certain cases and "it is not a practise we operate" although I find it odd that the Gov.uk website makes no explaination of any exceptions to the rule.
I need to know if this IS a statutory right and what I can do to get them to pay me what is due to me or whether they are right?
Many thanks
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. For now please let me know how long you have worked there.

JACUSTOMER-f5k817d3- :

5 years - 6 in October

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier. There is no specific statutory right to take holidays instead of sick leave, although you still have the right to make such a request under the Working Time Regulations. However, the issue is that the WTR allow the employer to reject such a request if they give you sufficient notice. To take leave you need to give your employer notice equal to at least twice the period you wish to take. For example to take 10 days off you need to give at least 20 days notice. If you have given the correct notice the employer can still reject your request by giving you notice equal to at least the period you wish to take. In the above example, the employer can reject your request if they give you at least 10 days notice before it is due to be taken.


 


So whilst you have the right to ask to take holidays instead of sick leave, the employer still had the legal right to reject this.


 


This will mainly become an issue if the reason for rejecting your request is discriminatory. For example if you are deemed to be disabled in law and the employer has granted similar requests to other employees who were not disabled, you may argue that this practice is discriminatory. If you cannot show this is the case then the employer would be acting lawfully. Saying that, it does not prevent you from raising a grievance with them if you still wish to formally challenge this.

JACUSTOMER-f5k817d3- :

This doesnt really answer my question in any depth - I had ascertained such info just from web search

JACUSTOMER-f5k817d3- :

Sorry but I am not happy to pay for this

Ben Jones :

this is your legal position, I am not sure what else you were expecting, there is nothing more to add

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