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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 75915
Experience:  Qualified Solicitor
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I wonder if you are able to deal with my Q. Thank you. If

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Hello. I wonder if you are able to deal with my Q. Thank you.
If possible pls check enclosed 2 images for clauses ‘Holiday’ & ‘Incapacity’.
I am confused about the holiday arrangement for me as the employee. For example if 1 month notice of contract termination is given by either party, then can I still take paid holiday of 1 or a few days during the notice period? Job started 27 July & I have taken no time off yet. There is a staff book but there is nothing re. Holiday in there & it has inaccurate and somewhat irrelevant information
For ’Incapacity’ Clause I’d like to know for instance if I test +ve for COVID19 & have to isolate for say 10 days, how could this affect my salary, especially if for instance termination notice is again given by either party.
Thank you.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

I will take a look and reply this evening, thanks

Many thanks for your patience, I am pleased to be able to continue assisting with your query now.

Holidays

You do have the legal right to take accrued holidays during the notice period, but there is no guarantee that the employer will agree to it. If the employer wants to reject an employee’s request for holidays, they must give the employee notice which is at least equivalent to the holidays they had requested to take. For example, an employee wants to take 5 days holidays - the employer can reject that request if they advise the employee of their decision at least 5 calendar days before the holidays were due to be taken. However, if they approve your request, you can indeed take accrued holidays during the notice period.

Incapacity

The clause says that you receive sick pay which is subject to the sick pay policy, available separately. You would therefore have to check that to see what your entitlement is. If it is just SSP, that is hat you would get which means your salary will be reduced accordingly (SSP is just under £100 a week).

If you are off sick during your notice period, different rules apply. When an employee is working their notice period, a common question that arises is what are they due to be paid during that period. Would it be full pay, or is it something else, depending on what they are doing at the time, such as sick pay if they are off sick.

The answer lies in Section 87(4) of the Employment Rights Act 1996, which is a bit of an obscure rule under employment law. You can refer to the actual legal resource here:

https://www.legislation.gov.uk/ukpga/1996/18/section/87

To simplify it, the key question is: What notice period is the employer obliged to give the employee on termination and is it at least one week more than their statutory entitlement?

The statutory notice entitlement is 1 week for the first 2 years of employment and once they have 2 years or more, it is an additional week per full year of employment, up to a maximum of 12 weeks’ notice. So someone with 4 years full service will get 4 weeks’ statutory notice, and someone with 20 years full service will get 12 weeks’ notice.

This statutory notice entitlement then needs to be compared to the contractual notice period due by the employer on termination.

If the contractual notice period is at least one week more than the statutory one, they will only be entitled to whatever they are due at the time, based on their status. So if they are off sick, it is whatever sick pay they are entitled to.

If the contractual notice period is less than one week more than the statutory one, they will get normal pay for the notice period, regardless of their status at the time.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 8 days ago.
Thank you very much for all that. Please enable rating.

My pleasure, have a good evening

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