What is the law on sick/holiday leave?

[oopslateagain]

My dh works for a contractor. The company puts the job out to tender every four-five years and invites bids, so the contractor changes now and again but they have to re-offer the jobs to the current workers and have a rule where they can't reduce their wages or benefits.

The new contractor started part-way through the fiscal year. Now all the workers are being told that they won't have any sick leave allowance at the start of the year, they will 'earn' their sick leave as the year goes on. If they need to go off sick when they don't have enough sick leave they can use their annual leave instead so they still get paid.

Is this OK? I thought annual leave was to relax so that you would be ready to work for the rest of the year.

Not that my dh is likely to use it, btw, he's had 4 days off sick in the past year and that was because I had swine flu and his boss sent him home so he couldn't pass it on to anyone else!

Dh and the other workers are now saying that if they accrue sick leave in the same way as their annual leave, they will treat it as an entitlement and 'take' it towards the end of the fiscal year.

Employers do not have to pay employees anything other than SSP when they are off sick. However, in order to change the terms and conditions in this way the new contractor needs to get the agreement of the employees. They cannot simply impose this change.

I would also add that it sounds like this is covered by TUPE (Transfer of Undertakings (Protection of Employment) Regulations). If TUPE applies and the contractor is changing the terms and conditions to bring the new employees in line with existing employees that is a breach of TUPE, i.e. it is illegal. It may be a breach of TUPE even if they are changing the terms for another reason.

Yes his employment is covered by TUPE. I will have to get him to double check the actual t&c's of his last contract. TBH I think they got a bit 'spoilt' by the last contractor who were absolutely brilliant and always erred on the side of the employee.

Thanks!

OK I just asked him and he's already looked at his last contract.

He was given 5 days of sick leave on the first day of the fiscal year plus 240 hours of annual leave.

This new employer has given them the same annual leave but they have to earn the 5 days, pro-rated. i.e. by the last day of the fiscal year they will have 5 days sick leave available (if they haven't used any).

Am I right in saying this is in breach of TUPE - they are giving the same leave allowance but changing the way it is earned, to the detriment of the employee?

With both this and the last contract it was made clear that if they left the employment before the end of the fiscal year they would have to repay any payments for annual leave that had not yet been earned. However this contract states the same for the sick leave.

Whether it is a breach of TUPE is a more complicated question than it appears. It depends on a number of factors including the contractor's justification for this change and how long ago the contractor took over. However, they are changing the terms and conditions. They need the agreement of employees to do that.

Thanks. Have passed it on to dh and he and the others are going to look more closely at their contracts and the TUPE regs.

At the end of the day he's got a bloody good job so I don't think any of them are wanting to 'rock the boat' too much. They are going to challenge the new contractor on the change of t&c's but I think if it comes to the crunch they'll back down. Good to know that someone agrees with me (and him) though!