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Original poster

Term time working - it's like the wild west out there

36 replies

GasFeesBonk · 08/10/2021 19:50

So last year I had to put in a grievance against my employer (nhs) because they were using the wrong calculation to work out my annual leave entitlement, and therefore my pay. The "evidence" HR produced in favour of their illegal calculation was the term time working policy of lots of other NHS organisations which was the same as theirs. It would seem the majority of NHS employers were paying their term time workers illegally as well. Anyway I won my grievance.

This year I'm going to have to put in a second grievance because my HR dept claim I have no right whatsoever to accrue my annual leave and take it at another time if I can't take due to sick leave or maternity leave.

Why is there no guidance out there around term time contracts? Why are HR departments allowed to break the law, and why is it down the individual members of staff (usually female, often with caring responsibilities) to enforce the law?

OP posts:
OCM19 · 10/10/2021 11:46

Hi, I am a HR consultant specialising in the education sector (which is predominantly TTO so same principles apply). Does your contract stipulate when you have to take your annual leave?

The current case law around Brazel v Harper Trust will likely impact your annual leave entitlements and therefore your paid weeks per year. If they are still pro-rating your annual leave submit a claim with ACAS.

Happy to help further if you clarify what terms your contract stipulates. 🙂

ItsSnowJokes · 10/10/2021 12:01

When I was TTO and went on maternity they said they had to pay me for annual leave as I had no time to take the annual leave I had accrued while on maternity (due to my contract not allowing for annual leave during term time) this suited me as I had been on Statutory Maternity so was a nice bonus.

OCM19 · 10/10/2021 12:06

@ItsSnowJokes you’re right, an employer cannot deem you to have taken leave while on sick/maternity. You also keep accruing while on leave so would have accrued but untalented leave at the end of this period.

converseandjeans · 10/10/2021 12:12

In teaching I don't believe I accrued any holiday leave. So I didn't get any extra pay for holiday weeks during my time off & if we are ill when it's school hols that's just how it is. I was surprised to find out on MN that accruing holiday is a thing.

I imagine it's tricky to run a department if a member of staff wants to take 2 years worth of hols in a year.

I don't think you should have to raise the grievances. However it is just bad luck if you're unwell when it's your time off, I don't think it's the companies problem.

Original poster
GasFeesBonk · 10/10/2021 12:41

@OCM19

Hi, I am a HR consultant specialising in the education sector (which is predominantly TTO so same principles apply). Does your contract stipulate when you have to take your annual leave?

The current case law around Brazel v Harper Trust will likely impact your annual leave entitlements and therefore your paid weeks per year. If they are still pro-rating your annual leave submit a claim with ACAS.

Happy to help further if you clarify what terms your contract stipulates. 🙂

They are still pro-rating my annual leave but that's because our entitlement is more than the statutory minimum. I believe the ruling you quote only applies to the statutory minimum?

I would be interested in your views on accuring annual leave during periods of sickness and maternity leave.

OP posts:
OCM19 · 10/10/2021 12:57

@converseandjeans it’s a statutory right to accrue annual leave regardless of how many weeks per year you work.

The way TTO works in schools is you’re expected to work for 38/39 weeks per year (depending on the term weeks) and then they add your entitlement to annual leave on top. So for example if you are entitled to 30 days leave including Bank Holidays (so 6 weeks leave) your paid weeks per year would be 44 or 45 weeks per year. That is then divided into 12 equal instalments so you still receive pay over the holiday periods when you’re not paid or required to work (I.e. summer). The tricky bit is when you’re on Mat leave, while you accrue annual, there may have been sufficient school closure periods either side for you to have been deemed to have taken your leave.

converseandjeans · 10/10/2021 13:00

OCM19 yes that makes sense as I don't think we get paid holidays as such - so I think our working days and holiday days are just spread over the year and divided by 12.

OCM19 · 10/10/2021 13:03

@GasFeesBonk that’s interesting. So you’re right in that the ruling said that it is unlawful to pro-rate statutory annual leave. So as a minimum you should get 5.6 weeks of annual leave. However, if you then get enhanced under your contract, they can pro-rate this element of your leave but this should be in addition to the statutory amount of 5.6 weeks.

For when you’re on maternity/sick leave, this will very much depend on how much leave you had taken before leave and how much you accrue. In short, the NHS cannot discriminate you or treat you any less favourably for being on maternity, so you will continue to accrue the normal rate of holiday in line with your contract. Your employer should meet with you beforehand to explore whether you have an opportunity to add accrued holiday onto the start or end of your maternity leave.

Watapalava · 10/10/2021 13:22

You normally only legally accrue during paid maternity so if you take longer then you won’t

OCM19 · 10/10/2021 13:34

@Watapalava during periods of unpaid leave, the contract of employment is still in place so annual leave and any other benefits (save for salary) continues as it would normally if you’re not on unpaid leave Smile

Watapalava · 10/10/2021 14:29

Yes but only upto statutory

Nothing above that

Watapalava · 10/10/2021 14:30

Well that’s how it was for my maternity! I accrued for the paid 10 months but not for last two as I’d gone over the statutory leave amount already and they didn’t have to give me more

Watapalava · 10/10/2021 14:31

(My leave normally was 7 weeks)

OCM19 · 10/10/2021 16:09

@Watapalava you should continue to accrue the same amount of holiday as you would had you not have been on maternity, otherwise you’ve been placed at a disadvantage. I’m not sure how your leave year etc works but you shouldn’t be treated less favourably.

Watapalava · 10/10/2021 16:22

Are you sure?

On gov I’m it says upto statutory 28 days

Because I got more I was only entitled to accrue during my paid leave and would accrue x amount per month up to the u paid period

If my leave entitlement was less than I would only accrue up to the legal entitlement

Bluecheck679 · 10/10/2021 16:26

Slight derail but @converseandjeans the way it worked for me (teacher) was I accrued leave (annual entitlement capped at 40 weeks) and so I rejoined the payroll on full pay before actually restarting. So I think I had about 4/5 weeks on full pay before actually stepping foot back in the classroom. Im in Scotland but check your contract.

NavigatingAdolescence · 10/10/2021 16:27

@GasFeesBonk

So last year I had to put in a grievance against my employer (nhs) because they were using the wrong calculation to work out my annual leave entitlement, and therefore my pay. The "evidence" HR produced in favour of their illegal calculation was the term time working policy of lots of other NHS organisations which was the same as theirs. It would seem the majority of NHS employers were paying their term time workers illegally as well. Anyway I won my grievance.

This year I'm going to have to put in a second grievance because my HR dept claim I have no right whatsoever to accrue my annual leave and take it at another time if I can't take due to sick leave or maternity leave.

Why is there no guidance out there around term time contracts? Why are HR departments allowed to break the law, and why is it down the individual members of staff (usually female, often with caring responsibilities) to enforce the law?

You have no right to carry leave due to sickness in the NHS. The sickness policy states that annual leave can and should be taken during LTS. (In theory your employer can contact you frequently during sick leave but not during annual leave, so there is a point. It also kicks your half pay date down the line.)

You are absolutely entitled to carry annual leave due to maternity leave. But your employer can stipulate that it must all be used before you return or when it is used.

NavigatingAdolescence · 10/10/2021 16:27

(NHS HR Director)

OCM19 · 10/10/2021 16:29

@Watapalava yes I am sure, your employment terms, including your pension contributions and holiday entitlement, are protected while you are on Statutory Maternity Leave, so should continue as set out in your contract. Could you perhaps send the link of the .gov section you’re looking at?

NavigatingAdolescence · 10/10/2021 16:29

There is also an adjustment down to statutory leave level in NHS if you are on LTS across 2 leave years.

Original poster
GasFeesBonk · 10/10/2021 17:06

Employees definitely have the right to accrue annual leave during sick leave in my NHS organisation Confused

Our sickness policy states that any annual leave booked during a period of sickness can be reclassified as annual leave. Managers can't force employees to take annual leave during sick leave, but employees can request to take annual leave during sick leave.

This has been standard across a number of NHS organisations I've worked for.

OP posts:
OCM19 · 10/10/2021 17:08

@NavigatingAdolescence that’s a really interesting policy, I would love to know how the ET would see that in an indirect discrimination claim, as surely those who are on LTS for a disability related absence are being treated less favourably due to a particular PCP?

That said, I know there are also similar policies within the public sector. Interesting though!

Original poster
GasFeesBonk · 10/10/2021 17:20

And it would seem what I said is standard uk employment law

www.gov.uk/taking-sick-leave

OP posts:
NavigatingAdolescence · 10/10/2021 19:49

@GasFeesBonk

Employees definitely have the right to accrue annual leave during sick leave in my NHS organisation Confused

Our sickness policy states that any annual leave booked during a period of sickness can be reclassified as annual leave. Managers can't force employees to take annual leave during sick leave, but employees can request to take annual leave during sick leave.

This has been standard across a number of NHS organisations I've worked for.

In England? Not the case in Wales. You accrue leave, but if you’re off across the leave years the previous year’s entitlement gets rebased to statutory and you lose the rest if you haven’t taken it.

If leave is booked and the individual is sick for the same period it would only be refunded on submission of a fit note. And if that was in any way considered to be a pattern it would be flagged and progression down sickness absence measures would ensue. (Maternity related sickness aside.)

Original poster
GasFeesBonk · 10/10/2021 20:12

I'm pretty sure the info in the link applies to the whole UK.

Yes you are only allowed to carry your statutory amount of leave over to a new leave year. Within the same leave year you can accrue it all.

Yes all sick leave is granted on the sick leave policy, so usually rules re fit notes etc all still apply.

All this applies to both full and part time staff.

OP posts: