Annual leave entitlement while out sick

daenerysstormborn3

In April I was hit by a van while driving my bike home from work. I am still not back in work due to the fact that I work in a 3 storey building with stairs only and no option to relocate to the ground floor and some complications with my recovery.

While I have been out of work I have been paid through an agreement with my employer and I will make a claim for loss of earnings through my personal injuries claim to pay them back.

My employer has told me that while I am out "sick" that my annual leave entitlement does not accumulate as it normally would, i.e. I get x amount of days for each month worked, so I have lost out on 5 months (it'll be 6 months by the time I go back to work) of annual leave entitlements. I have spoken to a number of people who have told me that this is not correct and I am in fact entitled to my annual leave entitlement while out "sick". Can anybody advise or provide information on this matter?

As an aside, I am assured that I can claim back the lost annual leave entitlement through my personal injuries claim but as it stands now, without my annual leave for the last 5 months, I have only 4 days annual leave left to take this year, 3 of which I have to keep for Christmas so I only have 1 day left this year that I can take as a holiday.

seamus

Your employer is correct. If you are on sick leave, you do not accumulate annual leave.

Others may be getting confused by the requirement that if you are out sick while on annual leave, you are entitled to keep that annual leave and use it at a later date. However, if you are out sick otherwise, you do not accumulate annual leave.

daenerysstormborn3

Thanks seamus.

I just found this on citizensinformation:

Long-term sick leave and annual leave

In 2009 the European Court of Justice (ECJ) ruled in case C-350/06 that a worker who is on long-term sick leave during the leave year does not lose the right to annual leave. The ECJ ruling states that employees who have not worked during the leave year because they are on sick leave, are entitled to their statutory annual leave for that year. According to this ruling workers are entitled to accumulate annual leave while on sick leave.

Many employers insist that you take your annual leave by a particular date, for example, the end of the calendar year. This ECJ ruling also applies to a worker who was on sick leave immediately before leaving the employment. This means that the worker would be entitled either to carry over, or receive payment for, annual leave which was not taken because the worker was on sick leave.

The Organisation of Working Time Act 1997 states that the employee’s entitlement to annual leave is based on hours actually worked. Until this legislation is amended this ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable by employees in the private sector. However under the principle of ‘direct effect’ it does apply to the public sector and therefore workers in the public sector can accrue annual leave when they are off work on sick leave.

That's a bit sad, no time off until next year

seamus

Very useful to know, and yes that is a bit ****.

ted1

Pixie of you are being paid, how can you claim loss of earnings? If I was off work for 6 months I'd be going mad with all the spare time, holidays would be the last thing on my mind.

tatli_lokma

pixiebean22 wrote: »

Thanks seamus.

I just found this on citizensinformation:

Long-term sick leave and annual leave

In 2009 the European Court of Justice (ECJ) ruled in case C-350/06 that a worker who is on long-term sick leave during the leave year does not lose the right to annual leave. The ECJ ruling states that employees who have not worked during the leave year because they are on sick leave, are entitled to their statutory annual leave for that year. According to this ruling workers are entitled to accumulate annual leave while on sick leave.

Many employers insist that you take your annual leave by a particular date, for example, the end of the calendar year. This ECJ ruling also applies to a worker who was on sick leave immediately before leaving the employment. This means that the worker would be entitled either to carry over, or receive payment for, annual leave which was not taken because the worker was on sick leave.

The Organisation of Working Time Act 1997 states that the employee’s entitlement to annual leave is based on hours actually worked. Until this legislation is amended this ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable by employees in the private sector. However under the principle of ‘direct effect’ it does apply to the public sector and therefore workers in the public sector can accrue annual leave when they are off work on sick leave.

That's a bit sad, no time off until next year

seamus wrote: »

Very useful to know, and yes that is a bit ****.

despite what is written here, ISME and SFA advise employers that if possible they should be seen to make a compromise on this, as should it go before the LRC chances are a commissioner will rule in favour of the employee and uphold the ECJ ruling. So it depends on whether the time off is worth it to you to take a case.
Then again, you could always try to negotiate with your employer prior to your return to work for you to take some time off and still retain some form of payment.

Or you could ask your doctor would he think it be beneficial for you to have a spot of recreation before your return to work - if it were under medical advice you could still claim your illness benefits

And if you get your AL back via your personal injuries claim, perhaps then use that money to take 'unpaid' leave from work - that way you won't actually have lost out either financially or time off wise.

daenerysstormborn3

ted1 wrote: »

Pixie of you are being paid, how can you claim loss of earnings? If I was off work for 6 months I'd be going mad with all the spare time, holidays would be the last thing on my mind.

It is an agreement with my employer. They are paying me and I will then pay them back through a loss of earnings claim. I work in a litigation solicitor's office and it is common practice.

Well I have been stuck in the house for nearly 6 months with no transport because the guy that hit me wrote off my bike, other than having to take taxis for medical appointments, so a break is much needed, believe me. On top of that, I will probably need time off between now and Christmas for more medical appointments and I'm sure a situation may arise where I will need time off for other matters. Being off work injured does not equal having a spare 6 months to do as you wish.

Little Ted wrote: »

despite what is written here, ISME and SFA advise employers that if possible they should be seen to make a compromise on this, as should it go before the LRC chances are a commissioner will rule in favour of the employee and uphold the ECJ ruling. So it depends on whether the time off is worth it to you to take a case.
Then again, you could always try to negotiate with your employer prior to your return to work for you to take some time off and still retain some form of payment.

Or you could ask your doctor would he think it be beneficial for you to have a spot of recreation before your return to work - if it were under medical advice you could still claim your illness benefits

And if you get your AL back via your personal injuries claim, perhaps then use that money to take 'unpaid' leave from work - that way you won't actually have lost out either financially or time off wise.

Yeah I think I'll just have to wait to claim it back through my P.I. claim and when my case is finalised take a long well-deserved break.

Clauric

There is something that hasn't been mentioned, and is normally glossed over (both in this thread and others).

The entitlement is to 20 days per year annual leave. Most people assume that they get 1 2/3 days per month worked, or 8% of hours worked. Both are only secondary ways of calculating your actual entitlements.

The primary way to calculate your entitlement is if you have worked a minimum of 1,365 hours in the annual leave year (April - March). This amounts to 26.25 hours per week.

Only if you do not have these hours, or expect to make these hours in the course of the year do you revert to the other two options.

The secondary method of calculating annual leave is if you work more than 117 hours per month (27 hours per week), then you are entitled to 1/3 of a week (5 / 3 = 1 2/3 days).

The tertiary method of calculating annual leave is 8% of all hours worked.

It is important to remember that the most days you can get by statute is 20 (your employer may be generous and allow greater annual leave, but that is between you and them). It is also up the employer to calculate whichever method is most beneficial to the employee.

Now that that rant is over, I'll get back to your question.

First of all, I think you may have a problem claiming loss of earnings. If your employer is paying you while you are out sick, you have not lost any earnings. I realise that you have made an agreement with your employer, but as far as the insurance company is concerned, you are simply being paid. Any agreement is none of their concern. This is a mitigation of your lossess, and you did not in fact have any losses. Also, if you did not claim for Occupational Injury Benefit (I assume you haven't), then you did not do enough to further mitigate any lost earnings, also reducing any amount of your claim.

With regard to your annual leave, which was your original question, if you come back after 6 months gone in the work year, you should be entitled to a minimum of 10 days annual leave. As it is unlikely that you will get to work 1,365 hours in the remaining 6 months of the annual leave year (as you would need to work 52.5 hours per week, which is above the maximum hours permitted per week) you should calculate your annual leave entitlements on the basis of the other two options above.

So if you work a 37.5 hour week for the next 6 months (including annual leave days), you would have just over 2 weeks leave (2 weeks and 3 hours = 37.5 * 26 * 8% / 37.5), using the 8% method. the 1/3 of a week method yields 10 days or 2 weeks.

Hope this helps

tatli_lokma

Clauric wrote: »

So if you work a 37.5 hour week for the next 6 months (including annual leave days), you would have just over 2 weeks leave (2 weeks and 3 hours = 37.5 * 26 * 8% / 37.5), using the 8% method. the 1/3 of a week method yields 10 days or 2 weeks.

Hope this helps

Very well explained Clauric....

I think however that part of the problem lies in the fact that OP has aready taken some leave this year prior to her going out sick

pixiebean22 wrote:

I have only 4 days annual leave left to take this year, 3 of which I have to keep for Christmas so I only have 1 day left this year that I can take as a holiday.

it would look from this that of the possible 10 days you calculate, 3 need to be left for Christmas, and possibly 6 days have already been taken which were not accrued at the time, leaving 1 day free to be taken. Am I correct pixiebean?

daenerysstormborn3

Clauric wrote: »

There is something that hasn't been mentioned, and is normally glossed over (both in this thread and others).

The entitlement is to 20 days per year annual leave. Most people assume that they get 1 2/3 days per month worked, or 8% of hours worked. Both are only secondary ways of calculating your actual entitlements.

The primary way to calculate your entitlement is if you have worked a minimum of 1,365 hours in the annual leave year (April - March). This amounts to 26.25 hours per week.

Only if you do not have these hours, or expect to make these hours in the course of the year do you revert to the other two options.

The secondary method of calculating annual leave is if you work more than 117 hours per month (27 hours per week), then you are entitled to 1/3 of a week (5 / 3 = 1 2/3 days).

The tertiary method of calculating annual leave is 8% of all hours worked.

It is important to remember that the most days you can get by statute is 20 (your employer may be generous and allow greater annual leave, but that is between you and them). It is also up the employer to calculate whichever method is most beneficial to the employee.

Now that that rant is over, I'll get back to your question.

First of all, I think you may have a problem claiming loss of earnings. If your employer is paying you while you are out sick, you have not lost any earnings. I realise that you have made an agreement with your employer, but as far as the insurance company is concerned, you are simply being paid. Any agreement is none of their concern. This is a mitigation of your lossess, and you did not in fact have any losses. Also, if you did not claim for Occupational Injury Benefit (I assume you haven't), then you did not do enough to further mitigate any lost earnings, also reducing any amount of your claim.

With regard to your annual leave, which was your original question, if you come back after 6 months gone in the work year, you should be entitled to a minimum of 10 days annual leave. As it is unlikely that you will get to work 1,365 hours in the remaining 6 months of the annual leave year (as you would need to work 52.5 hours per week, which is above the maximum hours permitted per week) you should calculate your annual leave entitlements on the basis of the other two options above.

So if you work a 37.5 hour week for the next 6 months (including annual leave days), you would have just over 2 weeks leave (2 weeks and 3 hours = 37.5 * 26 * 8% / 37.5), using the 8% method. the 1/3 of a week method yields 10 days or 2 weeks.

Hope this helps

I claimed for illness benefit as you have to claim for that before you can claim for occupational benefit (accident happened driving home from work) and there is a delay processing my occupational benefit claim, cutbacks etc.

There won't be any problem with any loss of earnings claim. This is common practice and my employer has done this with 2 other employees who had accidents while in her employment and there was absolutely no issue with it.

Little Ted wrote: »

Very well explained Clauric....

I think however that part of the problem lies in the fact that OP has aready taken some leave this year prior to her going out sick

it would look from this that of the possible 10 days you calculate, 3 need to be left for Christmas, and possibly 6 days have already been taken which were not accrued at the time, leaving 1 day free to be taken. Am I correct pixiebean?

Yeah that's right Little Ted.