Can my boss do this legally?

[Journey1234]

I am currently employed by a very old school office. Think lots of paperwork/paperclips 1920s desks and the smell of damp. The people are elderly and have worked there since pussy was a kitten. It’s very dull.

I have been there 1 year 3 month. I am currently on the sick as my health is in a bad way. My sick note runs out on 1st August. My boss isn’t happy and has questioned my ability to work and has sent me a huge email about what I am not allowed to do while on the sick for eg sports, go on holiday etc and if I did these things I would get a disciplinary. Fast forward to now he has told me that he thinks I should leave as he cannot afford for me to be on the sick as they are short staffed making me feel guilty he said it’s best if I resign. I told him I would rather resign then get sacked as I will need a reference for a new job. He was happy when I said I would resign and said he would call me back with the information regarding my pay etc. I am due to be paid end of this week at least £428 which is ssp only but he has told me that because I have taken so many holidays so far this year that I owe the business £750 so he has therefore said I will come out with 0 on pay day. Is he allowed to do this? Thankyou

You’d best ring ACAS to get proper advice but. I don’t think so

No they can’t do this. Don’t resign. Please get some legal advice asap

Regards the holiday, yes he is able to do that. If say you have 20 days holiday a year and the year runs from January to december that approx 1.6 days a month. If you are leaving at the beginning of August that means you should have 8.3 days left. If you have used these (technically in advance) and say have only 3 days left, then you owe him the ones you have used in the months you are not going to be there. I hope this makes sense.. Not sure I have worded it the best.

Also, if you have been there for under 2 years they can sack you without giving you a reason so I actually think him giving you an option to resign is reasonable. You have not gone into great detail about why you are off sick?

If you have taken more holiday than you have accrued, then it is legal and normal for this to be settled from your final pay.
How much holiday have you taken, what is your annual entitlement and when does the holiday year run from/to?

Sounds right if it is unaccrued holiday which you took.

That's nonsense. It probably did cost him a bit but if you are sick, you are sick. There are other ways around it, working from home/Flexi hours etc. He can't deduct that from your final pay. You don't have to resign either if you don't want to but I know in reality it could be awkward. I would get advice about this pronto

If you're on sick how have you been using hols, surely you'd accrue them? They can't replace you while you're off sick so obviously he'd rather you leave however it's perfectly legal for you to be off sick and companies are or should be set up to cover it. Of course its an expense but we dint live in Dickensian working conditions.

With regards holiday, if you've taken most of your annual allowance of holiday already then yes you would owe the company, for example in my last job one would earn something like 3 holiday days per month which in total adds up to holiday allowance over the year. If I took 4 weeks holiday before March then left in April I'd owe some of that back as I haven't worked enough that year to earn those holiday dates in effect.

The holiday thing yes, they can do that.

But the other stuff could sound a lot like constructive dismissal.

DO NOT RESIGN YET.

Keep notes of everything. Keep all emails and details of any phone calls and contact ACAS asap.

You can be dismissed for any reason in the first two years of employment.

Employer needs to pay SSP for the days you have been off sick (starting on day 3)

Have you taken paid annual leave? If so, how many days and what day does your contract/employment date from? If for example you have taken 21 paid annual leave days this employment year, but will be leaving after three months, and have only “earned” 7 of them, I imagine the employer could expect to be repaid for the excess days.

But ask ACAS.

How much annual leave have you taken? And when does the annual leave period run from and until?

You might have to pay something back depending on the above.

Are you planning on returning to work on the 1st Aug?

How long have you been off?

Between sickness and all your holiday you just have barely been there!

But yes, if you have used more than you have accrued then you owe the business for that.

Are you actually too ill to work? “On the sick” sounds a bit odd.

Constructive or unfair dismssal isn't really a thing before 2 years' employment unless the OP meets strict criteria.

OP how much holiday have you taken this holiday year?

This!
Holiday - if you've taken it without accruing then can dock
But he has basically forced you to resign and you have effectively caved in and agreed because you hate it so much. This is a clear cut case of constructive dismissal IMO. Do you think you can easily get another job? It's tiring and stressing going through disputes

You’re still accruing annual leave whilst on sick pay.
He can deduct overpayments from SSP.
You should call ACAS for advice because depending on your illness this may fall within the parameters of disability discrimination.

2 issues to be dealt with separately

1. The sickness, worth an ACAS chat
2. The pay- yes he can take money from your pay if you have taken too much annual leave & owe them

If you plan to claim benefits then you need to get fired not resign.

It is not a clear cut case of constructive dismissal, ffs!
Op has not worked there for two years, it simply doesn’t apply.

How long have you been off and could it count as being disabled?

Legal stuff aside your attitude sounds strange… I’m not sure if you were trying to be funny I your OP but your attitude towards your boss doesn’t sound good. Do you think he’s got the impression you just don’t want to be there? Is that the case?

Do you have a long term health condition or a disability that are causing your sickness?

Because if you are off sick because of any of the above then people on this thread telling that you can be sacked for any reasons in the first two years are wrong.

Your are protected from unfair dismissal because of your disability, age, gender or religion from day one.

“On the sick” 🤔 🤔🤔

No idea if it’s legal or not but frankly he sounds well shot of you.

If you have taken more holidays that you are entitled to then yes they can take it off your pay AFAIK. Up to you whether you refuse to resign and risk being dismissed. Since you've worked there less than two years you haven't got a great case for fighting the dismissal.

You’ve been there under two years so your rights are negligible. I’d call ACAS to talk it through with them to see if you can follow up on this.

As for your annual leave, it will be pro-rated so if you don’t work for the full year and take all your holiday in the first few months then it’s normal to pay it back out of your final salary.

Your annual leave can be calculated per year. So if you get say (making this easy) 36 days a year then that’s like 36 divided by 12 months = 3 days per month.

So if your days were allocated from January then youd be due jan-July holidays ie 7 months x 3 days accrued per month = 21 days.
So if you’ve taken more you owe them.

Obviously it depends on the number of days and when they get allocated. You should be able to work this out.

Re benefits, be aware you won’t get any benefits at all if you resign from a job for something like five MONTHS. It’s a long time. So you shouldn’t resign unless you have a new job to go to or half a years worth of savings as you’ll have no money coming in at all.

what are you off sick with?
have you used holidays instead of sick leave?