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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49779
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi. I've been off work for 13 months with a bad back.

Customer Question

I've been off work for 13 months with a bad back. I expect to be well enough to return in 8 weeks. I asked my employer if they would consider allowing me to take holiday pay
and they refused on the basis I am signed off unfit for work by my gp. What can I do?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you mean you wish to take some of your holidays before you are allowed to return back to work?

JACUSTOMER-pd3x1nm4- :

Hi Ben,

JACUSTOMER-pd3x1nm4- :

I want to get paid holiday pay while i am still off work to help me financially. I understand an employee can get this only if their employer agrees. They have not and I want to know if there is anything else i can do about it.

Ben Jones :

Hi, it is indeed correct that an employer has the final say as to whether an employee is allowed to take their holidays when they want to. The employee has the right to submit a request to take holidays on specific dates but the employer also has the legal right to reject that request. As long as you are not being discriminated against, then you cannot really challenge the employer’s decision.

Discrimination would occur if you have a disability and you are being treated detrimentally as a result of it. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. However, you must be able to show that the employer’s reasons for rejecting your request are linked to our condition. If the reasons have nothing to do with it then it is unlikely it would amount to discrimination and you will have to accept their decision. At least your holidays will not get lost and you can still take them at a later stage once you have returned to work.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks