Q One of our employees had an accident at the start of 2013 and has been unable to work ever since. His employment was recently terminated and, to our surprise, he claimed payment in lieu of annual leave over that time. What are the rules relating to long-term sick leave and holiday pay?
The rules differ according to the different holiday entitlements afforded to employees by European law, UK law and under an employee’s contract of employment.
Statutory entitlement to four weeks’ holiday under EU law (the Working Time Directive): An employee who has chosen not to take his entitlement to the four-week period of statutory holiday during sick leave must be allowed to take it at a different time.
It may mean that he should be allowed to carry the accrued holiday over into the next holiday year; however he would be required to take it within a period of 18 months from the end of the holiday year in which it accrued. If he does not, it would be forfeited.
If, as is the case here, the employment is terminated, the employee will be entitled to a payment in lieu of any accrued but unused statutory holiday of up to four weeks for the 2013-14 holiday year and up to four weeks (pro-rated) for the 2014-2015 holiday year (subject to the above restriction).
Statutory entitlement to additional 1.6 weeks' holiday under UK law (the Working Time Regulations), and any holiday entitlement under a contract of employment (over and above the statutory entitlement, if any): The ‘carry over’ rules do not apply to an employee's statutory entitlement of an additional 1.6 weeks’ holiday, or to any contractual entitlement over and above an employee's statutory entitlement.
You should check the employee’s contract and your holiday carry over policies to determine what happens to this entitlement during sick leave, and whether it must be carried over and paid in the same way.
Q I am a mother who works a standard 37 hour a week. My six-year old daughter has been very ill and recently had a major operation. I’d like to know whether I can expect my employer to give me time off to look after her and, if so, how much? My doctor says she should be fully recovered in around six months.
As a parent of a child under 18, there is a range of options open to you.
Parental leave: As long as you have been continuously employed by your employer for at least one year, you are entitled to take Parental Leave. You must usually provide 21 days' notice of your intention to take Parental Leave and give your employer evidence that you are entitled to take it, if requested.
If you satisfy these criteria then you may take four weeks' Parental Leave in respect of an individual child each year (up to a maximum of 18 weeks in total). If you have more than one child, you may take up to four weeks' Parental Leave for each child per year, provided that you use the leave to care for that child. Leave to care for a sibling is a legitimate way of extending the time you can have at home caring for your daughter.
Employers may postpone a request to take Parental leave if they consider that their business would be disrupted by your leave. If your employer does postpone your request then it should explain why. You may be able to come to an arrangement with your employer.
Parental Leave is usually unpaid.
Request to work flexibly: As long as you have been continuously employed by your employer for 26 weeks, you could make a request to work flexibly (for example, part-time). This change can be permanent, or for an agreed period (e.g. 6 months).
Your employer does have the right to refuse a request to work flexibly on certain grounds including (but not limited to) if your flexible working arrangement would detrimentally impact on the business' ability to meet customer demand, its performance, or quality.
You may only make one request to work flexibly in any 12-month period.
Sabbatical: You may be able to agree with your employer that you will take a period of unpaid leave (e.g. six months). Although your employer is not under any statutory obligation to consider or agree to such a request, it may prefer to agree to a set period of absence rather than coping with cover for a flexible working request.
Of course, you may use up any holiday entitlement that you have, and you should also check your employer's family-friendly policies for any additional benefits or schemes which it may offer.
60 second guide to redundancy
Employers should:
- establish whether there is a genuine redundancy situation, ie., closure of the business/place of work or a reduced requirement for work;
- consider alternative solutions to redundancy;
- follow a fair procedure. If 20 or more redundancies are proposed in a 90-day period, collective consultation and notification (form HR1) obligations will arise;
- take notes of any meetings/decisions about the redundancies;
- consider the appropriate pool of employees, objective selection criteria and produce a list of alternative vacancies across the business;
- hold an “at risk” meeting with all affected employees to explain the reasons for the potential redundancies, how many jobs are at risk, how ways of avoiding redundancies are being considered (but welcome employee suggestions), ask for volunteers if required, explain pools and selection criteria if applicable, and explain the right to time off for job searching;
- ensure that two line managers conduct any scoring under selection criteria to help ensure objectivity;
- invite in writing provisionally selected employees to at least one individual consultation meeting, setting out reasons for the redundancy situation, why they have been provisionally selected and explain that no final decision on redundancy has been made yet;
- at the meeting/s: consult the employee. Discuss their score with them and consider their comments and any alternatives to redundancy;
- follow up on any action points and consider whether any re-scoring or alternative proposals changes the provisional selection;
- invite in writing any chosen employees to an individual redundancy meeting, informing them of their right to be accompanied;
- explain the redundancy package and remind the employee they may take time off to look for alternative employment;
- confirm the redundancy and termination date, termination payments, the employee’s right to appeal and the time limit in writing; and
- keep employees informed about alternatives/vacancies up to their termination date.
