Taking holiday when on long term sick leave

[BananaWaving]

From what I have seen online, apparently annual leave still accrues even when on sick leave.

It seems a bit cheeky, but has anyone taken annual leave when they are on long term sick leave so that they get full pay for that time instead of the reduced sick pay amount?

Also, has anyone who works in HR come across this being done?

Thanks.

@BananaWaving 24 years of managing large teams, working closely with HR, Occupational Heath, Case Managers and Policy says otherwise.

Hi @tempnameforadvice sorry not clear what you mean. Otherwise about what specifically?

Can you explain how one is “fired” from this situation?

Anne why I haven’t been?

I have never dealt with a policy such as that but I have dealt with long term sick and ill health retirement.
long term sick we usually allowed holiday to be used up if we knew that the person wasn’t going to be back with in that year.

we usually ill health retired if we got to the point that the doctors were unable to give a point of return and they were no longer waiting for any further treatment or diagnoses.

ill health retirement is also there to support you being able to claim benefits easier supposedly

have you actually asked your employee? They may know straight away?
it also may worth asking if they have actually used the policy until retirement or do they let people go
do you have meetings set up to discuss your situation and keep in touch ?

Dismissal on grounds of capability

They can’t, because that would restrict access to a contractual benefit. In fact there would be no point in having the policy if they were able to do that.

Depends on the wording of the insurance and the OP’s contract.

We process this frequently in HR. I don’t think it’s cheeky to use it this way at all, especially if you are on long term sick leave and have dropped into half or nil pay.

Well of course but as a general principle an employer can’t restrict access to a contractual benefit, which is what would happen if they fired them. See?

Thanks @Littlegoth
Is it correct that I should be allowed to carry over up to 4 weeks annual leave to the next year if I am on sick
lesve? Or can employers decide how much they allow to be carried over?

I have income protection through my employer. In my case I can choose the level of benefit and I pay through salary sacrifice. I have to have a minimum (40% for 5 years) and the maximum (which costs a lot more) is 60% until retirement. Next time I can choose I will ask more detailed questions but it would clearly be unfair if I had paid for a ‘till retirement’ policy and the employer could dismiss me for ill health after (say) 3 years, thus making the choice of length of policy meaningless.

https://www.thehrdirector.com/features/employee-benefits-reward/group-income-protection-things-that-all-employers-should-consider/#:~:text=In%20an%20employment%20tribunal%20case,cause'%20to%20dismiss%20the%20employee.

Interesting article.

Good article

I agree with this.

If you’ve been unable to take your annual leave due to sickness, 4 weeks is correct but your employer can choose to allow more at their discretion. That’s the minimum they have to allow.

Employment lawyer here. OP, the reason you'll see disagreement on this is because there are two conflicting legal cases: one says you can't dismiss an employee in receipt of phi and the other says you can if there is an express right in the contract/hr policy.

You can therefore argue it either way, but your case will be stronger if there's nothing in writing specifically saying your employer can dismiss you even if you're receiving phi.

In my experience employers will work with the insurer to decide what to do with the employee after a couple years' absence/if a return looks unlikely. It usually results in a financial offer to the employee to leave. Much depends on medical evidence about likelihood of return and how far off retirement age.

It makes sense to speak to a lawyer, but before you spend money to receive an 'it depends' type answer, I would speak to someone in HR and ask them what might happen in the event you still haven't returned in a few years. And get the insurance policy, any hr policy that references the benefit, your offer letter and contract. Then your lawyer can properly advise. Also check if there's a separate ill-health retirement benefit and policy.
Sometimes the insurance company has an faq on their benefits portal too.

Many, many employees receive phi for years and many are paid out substantial sums to leave employment and stop receiving it.

Good luck OP x

Thank you so much @Cookie77777 , that is really helpful advice. Would my union be able to offer accurate legal advice on this or am I better to pay for an employment lawyer?

Oh gosh if you have a union I'd definitely speak to them. They should know what your employer has done in the past as well.

TBH I'd try all avenues before paying for legal advice because it will always be somewhat caveated and it's ridiculously expensive for an individual. They will also not have any insight on your employer's particular approach and that's often the most important bit.

Obviously you will need a lawyer if things get contentious or you're made an offer to leave, but your union might fund that or have their own in-house team.

I would hope HR can help too as I said before.

Thanks.
I really don’t trust my HR because they are notoriously incompetent and ruthless to their employees.

We have an income protection scheme until recovery, retirement age or death. 50% of salary where medical evidence supports incapacity and OH support that. We have a closed self funded scheme and now an insurance scheme.
I cant believe so many people seem to think these things don't exist or that it only lasts a couple years.
In my organisation we've never dismissed anyone once in scheme unless very near to retirement as the collective costs to buy out salary and pensions is too prohibitive.
To answer question yes you accrue annual leave but check your company's approach as an example Once in IP we revert annual leave accrual in line with statutory entitlement rather than the higher contractual amount and we contact affected employees at the end of each leave year to inform we pay out for previous years accrual unless they say not to.
I think you'll have to explicitly ask your employer their approach to this as its unlikely your contract goes into that much detail.

Very rare for something like this to be a contractual benefit.

It is definitely a contractual benefit in my case, that’s one detail I do know for sure.

Is it though? It’s a huge market and clearly some huge companies are buying the products. It’s standard in several industries I can think of, but the common denominator is the size of the company. Global players = better contractual benefits as a rule of thumb.

Thanks @Figgygal , much appreciated.