Can my employer take my p/h out my a/l entitlement?

[Scottishnurse]

I work full time 9-5. My service is closed on public holidays.

I had 9 days a/l left and had them booked in in March however ended up off sick from feb-april. So I didnt get to use my 9 days. I wanted to use them to work part time atm as I'm still not fully recovered.

However apparently I only have 1 day to carry over as my employer deducts all your public holidays from any a/l carried over due to sickness. I have attached the policy. I mean the policy must be legit it just doesn't seem right.

Your screenshot doesn't reflect what your post says. Your post gives the impression that they take all 8 BH for the year from your Allowance if you carry over. But your screenshot says 'BH taken before sick leave commenced.'

Did you calculate your remaining leave taking in to account that you used 1 day of leave on each bank holiday?

As I said I went off sick in Feb so I had taken all the bank holidays as my service is closed on Bank Holidays.

No because annual leave and bank Holidays are two different things. On my annual leave card it says 0 bank Holidays remaining 9 annual leave days remaining

I'm not entirely sure that I am following what you are arguing, but reading the policy, it is pretty much the same as ours (also public sector but not NHS). I assume that your annual leave entitlement, contractually, is more than statutory? If that is the case, what that clause says is that if you are on long term sick leave and unable to take all your leave, the employer effectively "reduces" your leave entitlement to statutory only but only for the purposes of carrying over leave to another year. So if your contractual leave is 30 days plus bank holidays (38 days), and you had not taken 10 days of that, you would not be allowed to carry any of it over because you had taken the 28 days statutory leave. But if you had not taken 12 days you could carry over 2 days. Bank holidays are normal working days and included in the 28 days.

Then they are wrong and your screenshot doesn't say they can take bank holidays from remaining leave. It just says they will take any bank holidays already used from the total of 28 days. So they can't double-dip. You've already had 8 bank holidays taken, which is why your BH total is 0. They can't then take them again from your AL.

I dont have any more leave than statutory.

Thats what I thought I didnt think they could take my bh hours out of a/l but my boss is saying they can.

If you only get 28 days leave and you work full time, they can't reduce that. Because 28 days is the minimum, whether they are taking back holidays into account or not. An employer can choose to give 20 days plus 8 bank holidays (28 days total) or 28 days leave.

The screenshot you are showing has been misinterpreted. It doesn't say they can deduct the bank holidays off of your remaining leave (they can't). It says they can deduct any leave or bank holiday days already taken from your leave entitlement.

By the way, employers do get it wrong. I took a leave of absence and when I tried to discuss the AL I was owed, my NHS manager said 'oh no, that's gone...' I said 'I don't think it is gone; I think it carries over.' She said 'No, you need to forget about it, it's gone.' and I said 'Well I'll just contact HR to confirm because the agenda for change regs say differently.' She said 'I'll confirm with HR'. They replied 'Of course it all carries over...'

I've just reread your posts there and I think I get 28 days annual leave and 8 public holidays so does that change things? I didnt know they could give your public holidays out of that 28 day entitlement. I thought public holidays and annual leave were two separate things

Many employers put the holiday entitlement including bh's as the allowance eg I get 33, so if I have to work a bank holiday (unlikely) I can simply take it another time

Has your manager spoken to you about returning if you don't feel totally fit? If you speak to Occupational Health you might be entitled to a phased return using special leave.

@Scottishnurse

I've just reread your posts there and I think I get 28 days annual leave and 8 public holidays so does that change things? I didnt know they could give your public holidays out of that 28 day entitlement. I thought public holidays and annual leave were two separate things

Yes, that does change things. 28 days is the minimum annual leave, but they can choose whether they include bank holidays in that (i.e. 21 days holiday plus 7 bank holidays) or don't pay bank holidays (so simply 28 days leave). If you get 28 + 8, then they can say that they will only carry over the statutory part, or that you can only carry over a maximum of 5 days, etc. What they can't do is take your entitlement below the minimum.

My old Trust allowed us to sell back annual leave to the Trust. But we weren't allowed to sell the statutory element, only the enhanced element. That's because the law says you must be given that leave.

Under Agenda for Change you'll either have 27+8, 29+8 (over 5yrs service) or 33+8 (10yrs+).

Assuming 27+8 - 35 days, sounds like they're reducing that to statutory entitlement of 28 and saying you've had 27 days of a/l + p/h combined so 1 day to carry forward?

I've not heard of it being reduced to statutory in those circumstances but could well be policy and I've just never had to deal with those specific circumstances!

I'd have thought you'd be on phased return after an absence of that length - are you being seen by OHS?

I am just coming to the end of my phased return so I wanted to extend the part time hours by using annual leave.

Yes I checked and I do get 27+8 so I've taken 18 annual leave days and 8 public holiday days.

So if this is correct then I should be allowed to carry two days over as if they only let me carry one then my full years leave would only be 26 days. Am I calculating that right ?

Surprisingly, the policy isn’t legally correct, because it says that you’re entitled to 28 days under the (EU) Working Time Directive, when actually the WTD only prescribes 20 days’ leave and it’s the (UK) Working Time Regulations that prescribes 28 days/5.6 weeks.

Legally you’re entitled to carry forward your statutory allowance, but not necessarily any contractual enhancement. It sounds like the additional 8 days you’re referring to fall outside of the scope of statutory allowance and are contractual so can legitimately be lost. But without looking at the wording of the relevant policies/your contract, it’s hard to say.

I have to say I am not familiar with the NHS position on this so I can’t say for sure whether they are right!