Retrospectively being forced to use annual leave to cover sick days - can they do this?

[Windmyonlyfriend]

My DH has been with his current company around 16 months and has recently handed in his notice with his last day being Dec 31st.

He has 2.5 days annual leave left to use before the end of the year. Last week he requested these 2.5 days.

HR have now emailed him and said that he only has 0.5 days annual leave left as he had one day off sick in March and another one in mid September and he would have to use holiday allowance to cover these.

This has never been mentioned before (it certainly wasn’t after his return to work after one day in March), and it says nothing about it in his contract.

Can they do this?

Did he get paid it at the time?

No. If they want him to take annual leave on a certain day they can do that but only with sufficient notice,

Did he get paid for the sick days? Is he entitled to be paid for them according to his contract?

Thanks for your replies. Yes, he was paid for them at the time and this has not been mentioned at any time until now.

His contract is really unclear. It doesn’t mention single days of sickness and only refers to SSP in terms of extended periods of sickness. It doesn’t specify one way or another about how single days off are dealt with.

Though he was paid the sick days at the time, they’re now saying he can’t have the two days holiday he still has remaining.

What was on the payslip? It would usually specify sick/holidays? Either way it does sound like he doesn’t get sick pay for odd days so you wouldn’t be any better off by getting it switched

Thanks Looneytune, that’s a good point, I’ll get him to look at his payslips and see what they say.

Since he wasn’t given the choice at the time of taking the sick days as unpaid leave, and is now being forced to lose holiday, do you know whether he could elect to take two days unpaid leave in lieu of the holiday he’s losing now?

It's pretty shabby of them to retrospectively force him to use leave to cover 1.5 days of sickness, especially if he had foliwed the correct protocol at the time.

Could he ask them (a) to point out to him where, in their sickness absence policy it states that's what employees should do and (b) why they didn't clarify at the time that this was how their sickness policy works for the days he was off sick.

Did he self-certify at the time either in the HR system or via a paper form, and did his line manager comment on the protocol at the time?

The first three days of sickness aren't covered by SSP because of the waiting days. so if he was paid as sick for those days it was company sick pay.

They should have told him at the time, I've never heard of retrospectively applying it as holiday. I've heard of being allowed to take holiday instead of sickness to avoid trigger points, but not what you describe.

They can’t force him retrospectively (or otherwise) to take holiday when he is sick. However they might say he’s been overpaid and deduct the appropriate amount, if he wasn’t entitled to be paid.

Thanks everyone, you’ve been really helpful. They got back to him this afternoon and said it’s company policy that people have to use holiday if they want to be paid for sick days (clearly not a policy they bother to tell anyone about!) but they’re willing to let him take the two days he’s requested over Christmas as unpaid leave.

At least he’s now even more glad to be leaving!