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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47875
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been employed by the same company 6 years.in

Customer Question

I have been employed by the same company for nearly 6 years.in November 2014 i was diagnosed with stage3 breast cancer and had op Dec 2014 i have been on sick leave up until 6th August 2015. I resigned through my ill health and left 6th August 2015
What wuld llike to know is am I entltled to be paid the 17 1/2 days holiday accrued as this has not been included in my final salary
Your help would be very much appreciated
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Were these days for the current holiday year?
Customer: replied 2 years ago.
Yes from january 2015 to 6th august 2015
Customer: replied 2 years ago.

Am i entitled to holiday pay from 1st january to 6th august 2015 as per originsl question

Customer: replied 2 years ago.

.

Expert:  Ben Jones replied 2 years ago.
Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.
You are indeed entitled to be paid for the holidays which you have accrued during your sick leave but have been unable to take to date. There has been a lot of case law, as far as the European Court of Justice, on this subject and the law clearly states that you continue to accrue holidays whilst on sick leave and if you are unable to take them due to being off on sick leave then you would be able to get these paid to you when you leave, or to carry the forward to future holiday years until a time when you can take them.
If the employer fails to pay you what you are due then that would likely amount to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.
In order to try and resolve this, 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.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or 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 and other Law Specialists are ready to help you
Customer: replied 2 years ago.

If i gave a months notice would i be entitled to a months full pay or just one week as i havè been on long term sick

Expert:  Ben Jones replied 2 years ago.
What is the contractual notice period which your employer must give you if they were to terminate your employment?
Customer: replied 2 years ago.

One month

Expert:  Ben Jones replied 2 years ago.
Ok well that’s illegal anyway as your statutory notice period entitlement is a week for every full year of employment so with 6 years’ service you would be entitled by law to 6 weeks’ notice. The employer cannot decide to give you less than that. If the employer is only required to give an employee the statutory minimum notice under their contract, the employee is entitled and guaranteed to receive full notice pay for that period of notice, regardless of whether the employee is on sick leave. This will be the case even if the employee has exhausted their statutory entitlement to statutory sick pay and has been on sick leave for a long time. So you should get full pay for your notice period.
Customer: replied 2 years ago.

They are quoting croners equality law at me as i sais i thoigjt i was entitled to full day as i came under tnis act wjen i was diagnosed with cancer. I advised tjem tjat I was entitled to 1 full months pay

17 1/ 2 days holiday plus hpliday not taken fromlast year. I spoke to

AAcas amd even tjeu sau ia, onlu emtitledto ome weeks pay so i amtotally confised

I s

Expert:  Ben Jones replied 2 years ago.
Can you please check your last reply I can't understand most of it, sorry
Customer: replied 2 years ago.

Apologies. The jist of it is they have contacted croners re the months salary who confirmed that the disability act is now the equality act. And croners say that under tne circumstances of resigmation whilst off sick i am only entitled to one weeks pay whicnh has been calculated correctly when i gave them one months notice.

I spoke with ACAS and they are in agreement with the firm. The firm are asking for any relevant paragraph/section under the equality act to backme up. I was under tne impression i was entitled to à months pay when i looked it up for resigning while on long term sickness.

I am totally confused

Expert:  Ben Jones replied 2 years ago.
ok so you say your employer has to give you a month's notice to dismiss but how much are you required to give to leave?
Customer: replied 2 years ago.

I gave them one months notice as per my contract

Expert:  Ben Jones replied 2 years ago.
Your rights are not under the Equality Act - this situation is dealt with under the Employment Rights Act 1996. This will explain your rights in a bit more detail: http://www.baineswilson.co.uk/articles/notice-pay-sick-pay-which-if-any-do-you-have-pay-exiting-employee-0
Customer: replied 2 years ago.

So under this act does it mean as i gave 1 months notice to leave on 6th august i would be entitled to one mo ths pay and not 1 week

Expert:  Ben Jones replied 2 years ago.
Yes, as long as your contract requires you to give a month's notice