Can work make me take annual leave when off sick?

[jevoudrais]

I have been on long term sickness following surgery. My fit note expires soon and I had originally requested annual leave which happens to coincide with the last week of the fit note.

They are saying they won’t record it as sick leave, despite the fit note. Looking at ACAS it looks like if I want to be on annual leave they can agree to it, but it doesn’t suggest they can force me to be on annual leave and not sick leave.

My team is short staffed and I think they’ve clocked how much leave I have to take when I get back. My consultant has recommended a three month phased return which they are also not supportive of. I was going to use that leave to still get paid for the hours I’m not working. Work have agreed that they consider me disabled and I am trying to come up with some reasonable adjustments to help keep me in work when I go back.

Has anyone else experienced this, or got any advice? It feels really unfair (and my annual leave entitlement has already reduced whilst I’ve been on long term sick also).

So have you booked the annual leave in the first instance and now trying to cancel it to put it through as sick?

They should cancel annual leave and have it as a continuation of your sick leave if your fit note covers that period.

As an employer, my understanding is that you have the right to have the time recorded as sick leave and to take your annual leave back.

Why has your leave entitlement decreased as a result of you being off sick?

I booked the annual leave around May. I didn’t have a date for my surgery then, that was in the summer. The surgery was more complicated than expected, and my current fit note includes this week of leave at the end. I don’t know yet whether I’ll definitely be back to work after this fit note, it depends if work agree to the amendments on my note (I’ve been told if they refuse it ends up as another not fit to work note).

They cannot do that, in fact you have a right to carry it over:

Long-term sick leave
Sick leave is usually considered long term if it lasts longer than 4 weeks.
If someone has not been able to use their holiday because they've been on long-term sick leave, they can carry it over.
Workers on long-term sick leave can carry over 4 weeks' unused holiday entitlement, unless the employer allows more to be carried over. This holiday must be used within 18 months from the date it's carried over.
A worker might not need to carry over any unused holiday. For example, if they return from sick leave and still have enough of the holiday year left to use their holiday.

https://www.acas.org.uk/checking-sick-pay/sick-pay-and-holiday-pay

You’re only entitled to accrue statutory leave whilst off. I have many years of service where I work and have not accrued anything above statutory whilst I’ve been off.

No they can't make you take holiday if you're off sick.

They also don't have to follow any guidance from GP re a phased return. A decent employer would, but they're not obliged to.

Fair enough if that's explicit in your contract.

They should have it as sick leave however are you still getting paid for your sick leave? Is using it as annual leave a better outcome for you? I don't think they can insist on it being logged as AL but I don't know where you work or how long you've been off for whether it's appropriate to not challenge and allow some give and take?

I would expect you would be on sick leave and your A/L would be returned. The issue we used to have was people returning straight from sick leave to a pre-booked holiday. We have guidance that states they can only do this at the manager’s discretion. Stops people self certificating and booking longer holidays, I.e. going off on holiday when on sick leave, but allows for R & R after long term sickness / cancer treatment etc. or after surgery.

When you mention phased return, will they not pay you your normal salary on phased return?

I thought a sick note overode annual leave already in the system tbh.