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Denied sickness leave

(103 Posts)
ImagineRainbows Fri 27-Sep-19 16:01:02

Posting for my partner, can anyone tell me where she stands legally please.

This year she had had:

3 weeks sick leave in one block following a car accident and injury. Doctors note provided for this.

1 week bereavement leave

3 days, 3 separate occasions, emergency dependants leave to deal with childcare issues

Together this sounds a lot but separately it’s not excessive to have had 1 sickness absence. These are all being lumped together and she has had a letter stating she is not to take any more leave.

Today she had a dental emergency at work (abscess ruptured) and had to leave to attend an emergency dentist appointment as she was in excruciating pain and could not talk (customer facing role).

She has now been told that she must take this as unpaid leave and make up the hours. However her contract gives her 4 weeks sickness pay at full pay and she has not used this.

The owner is stating that as she was paid for the bereavement leave and 2 days of the emergency dependants leave when they don’t have to this has reduced her sickness leave entitlement.

My thoughts are while they don’t have to pay the other leave the fact that in the past they have chosen to does not effect her sickness pay and she is still entitled to 4 weeks full pay as contracted. Additionally by refusing her sickness leave today they are treating her unfairly for taking emergency dependants leave which is also against the law to do.

Can anyone advise how this would be seen legally?

LolaSmiles Fri 27-Sep-19 16:08:48

I would imagine it will depend on what her contract says.

Todaythiscouldbe Fri 27-Sep-19 16:09:32

Would bereavement leave usually be paid or unpaid? In my company it's two days, not a week

ImagineRainbows Fri 27-Sep-19 16:11:52

The contract states 4 weeks sickness leave at full pay.

It states bereavement leave is at the managers discretion and does not state if paid or unpaid. She never asked for it paid.

They are deducting this from her sickness leave now but bereavement leave isn’t sickness and shouldn’t affect it.

Robs20 Fri 27-Sep-19 16:12:35

It sounds right that they can say this should be unpaid leave or the time should be made up.
Same as pp, bereavement leave at my company is only a couple of days and only for immediate family (spouse, parent or child). When my daughter died I had to get signed off in order to take more than a week off.

Mamasaurus82 Fri 27-Sep-19 16:15:33

Is she in a union?

ImagineRainbows Fri 27-Sep-19 16:16:16

She works part time so when I say a week it’s actually 3 days she had off. It was the manager who gave her a week, she never asked for a week. She informed them of the bereavement on the day it happened and said she would not be in work. The manager later sent a text to say he’s marked her off for the rest of the week as bereavement leave (a further 2 days).

Her contract does not state how much bereavement leave they get but another colleague recently took a week, also paid.

Never did they say they were using her sick leave for it and on the letter they clearly Mark it as bereavement leave and not sick leave. How can they take away her contracted sick leave for something they chose to do.

LolaSmiles Fri 27-Sep-19 16:18:43

What was the conversation surrounding bereavement leave? Did they offer it paid or did she check the terms of the leave? As with other posters, it's a couple of days at my workplace. If they had more than that then I could see how it was under sickness leave for mental health possibly.

LolaSmiles Fri 27-Sep-19 16:21:35

Sorry I cross posted with your update.

ImagineRainbows Fri 27-Sep-19 16:23:52

As above she phoned them to ask if she could have the day off that she had been informed about the bereavement. The manager later text that she had been marked off for the week. This was not asked for.

There was no discussion about whether it was paid or not. She only found out it was paid when she received the letter about her absence as she hasn’t yet been paid for that month. It was 3 working days in total she had off and they never said it was sick leave.

In fact if it was sick leave she would have required a doctors note as the from the first day she had off to the next day she was in work was more than 7 days, due to her only working 3 days, and so falls outside the self-cert timeline.

Todaythiscouldbe Fri 27-Sep-19 16:32:55

So she's actually had 5 weeks of paid absence since January?
If she takes the bereavement leave as unpaid (if, as you say, she hasn't been paid for it already) would she then still have sick leave 'entitlement'?

Span1elsRock Fri 27-Sep-19 16:33:04

As an employer, we offer paid leave at our discretion. That way, it doesn't get taken advantage of. It's not a right.

Given she's had 5 weeks off already, and is asking for more on top of her annual leave entitlement of presumably 4 weeks pro rata, I'd say she needs to be very careful here. I'm not sure how arguing how the leave was taken is going to help her. You can't seriously think they're going to give her 4 weeks fully paid sick pay on top of what she's already had off................

Todaythiscouldbe Fri 27-Sep-19 16:35:22

I'm confused by it being more than 7 days bereavement leave. The only way this would happen is if the leave overlapped two weeks or does she work different days each week?

mrsm43s Fri 27-Sep-19 16:36:21

In total she's had 3 weeks 3 days paid sick, and 1 week paid bereavement.

She's entitled to 4 weeks paid sick and no paid bereavement.

She's had over the odds paid leave.

Arguably she's been paid in error for her bereavement leave as it was misrecorded as sick leave - so she should have this appointment paid as sick, but they can claw back the 5 days bereavement paid in error.

Personally, I'd let it go, as correcting their error is likely to cost you more.

ChicCroissant Fri 27-Sep-19 16:38:18

So they have sent a letter saying that she will not receive pay when she is off sick (not that she can't take sick leave)?

That seems right because what you've said adds up to way more than 4 of her weeks already. She's run out of paid sick pay, companies do not have to pay sick leave.

Why do you think she is still due paid sick leave?

stucknoue Fri 27-Sep-19 16:43:19

That's a lot of sick leave in one year. I'm surprised they offer 4 weeks paid

Highlandcathedral Fri 27-Sep-19 16:44:06

As previous posters have said, if she had the bereavement leave unpaid, then she would maybe be paid for another week/effectively 3 days as that is what she works. But then she wouldn’t be any better off as she is still being paid for the same number of days? And I think generally 4 weeks paid sick leave is quite generous, many employers give a lot less than this, and she would be on a disciplinary too (not that I’m saying that this would be just, but that is how many companies work).

ImagineRainbows Fri 27-Sep-19 16:45:50

The bereavement leave wasn’t paid in error. Everyone gets this paid its just not in the contract as it’s not a given. Another employee recently had a full week paid also and they are full time so that was 5 days paid.

My partner had 3 days paid bereavement leave. Her contract states she is entitled to 4 weeks sick pay at full pay. She has taken 3 weeks (9 days) therefore she should be entitled to another week.

It does not say that using bereavement leave means you sacrifice sick pay and it has not been recorded as sick pay on her record it’s recorded as bereavement leave.

Because of when the days fell, she works 3 days a week and shifts so different days there was 10 days between her taking bereavement leave and her next day in work. Even if this was classed as sick leave it was over 7 days between shifts and therefore requires a doctors note. It was never and still isn’t being classed as sick leave.

The question I’m asking is it legal to take away a week of her contracted sick pay without prior agreement when this is not in her contract.

The other employee who had bereavement leave has not had sickness allowance deducted although they are not close to the limit. My partner is due to a car accident and a long absence. The sickness policy says no more than 2 absences in 6 months. She has not had this.

She has had 1 bereavement, 1 sickness absence and 3 emergency dependants leave to care for a disabled child. They are only excessive when you put them together but individually they are all acceptable according to her contract.

ImagineRainbows Fri 27-Sep-19 16:50:13

And no the letter does not mention sick pay at all. It says she cannot take any more emergency dependants leave and that she will be disciplined if she does. Although this is illegal.

She has had a text today after leaving work ill to tell her it’s going down as unpaid leave due to the fact she’s had bereavement leave recently.

Todaythiscouldbe Fri 27-Sep-19 16:59:30

Ultimately the employer doesnt have to pay for dependants leave or bereavement leave. They could claw this back and this would then allow today to be paid sick leave under the terms of her contract.
Emergency dependants leave can't be refused if it is a genuine emergency and could not have been foreseen or planned for, it doesn't have to be paid.

Ferretyone Fri 27-Sep-19 17:02:22

@ImagineRainbows

I do not fully understand the detail but I would think "take the time off" and then "Make up the time" does not seem a bad compromise.

I sometimes think that managers do not understand the [silly] idea of self-certification. This applies to the first days of any illness however serious I believe.

ImagineRainbows Fri 27-Sep-19 17:07:26

@Todaythiscouldbe No they don’t have to pay but I would imagine paying 1 employee for bereavement leave and making the other take it as unpaid wouldn’t be legal.

The emergency dependants leave was taken unpaid. No one is paid for that. The employer has an issue with my partner as she is the only female member of staff and the only one with children so no one else is taking these days and she is. The letter is completely focused around the emergency dependants leave. The bereavement leave and the sick leave isn’t mentioned. They are as contracted.

If she hadn’t taken any emergency dependants leave she wouldn’t be having this issue now. Her employer has argued before that she shouldn’t take leave to care for disabled child as I have a 17 year old daughter, partners step-daughter, and so she should leave disabled child with her. But his needs are very complex and my daughter wouldn’t be able to safely manage them.

misspiggy19 Fri 27-Sep-19 17:09:55

*Given she's had 5 weeks off already, and is asking for more on top of her annual leave entitlement of presumably 4 weeks pro rata, I'd say she needs to be very careful here. I'm not sure how arguing how the leave was taken is going to help her. You can't seriously think they're going to give her 4 weeks fully paid sick pay on top of what she's already had off................*

^Agreed. She sounds like she’s taking the kick here

Todaythiscouldbe Fri 27-Sep-19 17:09:58

It wouldn't be illegal, it's discretionary.

If she believes she is being discriminated against them that is entirely different to your original question. I suggest she speaks to acas or cab

zafferana Fri 27-Sep-19 17:10:18

TBH having had so much time off I suspect that her employer is utterly fed up of her not coming into work. For the sake of one day I think I'd leave it, since arguing about it may or may not get her this day as 'sick leave', but is likely to cause bad feeling. When employers have 4 weeks paid sick leave as part of the contract they don't seriously expect employees to take all of it every year. It sounds like they were generous about the bereavement leave, but now feel that she's taking the piss.

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