Maternity leave: what happens to holiday leave and sick pay?
Some employers aren't clear how maternity leave may affect sickness absence or holidays. For example, what happens to paid holiday during maternity leave and what should you do if an employee is off sick when maternity leave starts? What follows is the current thinking on some of the most common questions, but as it's a complex area it always worth taking legal advice.
If an employee is off-sick because of her pregnancy, then she is entitled to sick pay in the normal way. (Antenatal care does not count as pregnancy-related illness in this respect.) Her pregnancy sickness should be recorded separately from other illness and should not be counted towards a total sickness record. Neither can pregnancy-related sickness absence be used as a reason for disciplinary action or redundancy selection.
Long term sickness
In July 2012, the Court of Appeal made a decision on an important sick-leave case. It ruled that an employee on long-term sick leave is entitled to carry holiday leave forward to the next year, even if no specific request had been made to do so.
The ruling has resolved two conflicting decisions made by the Employment Appeal Tribunal (EAT) in 2011 concerning the need to submit a request for leave to be carried forward.
The implications of the Court's decision could be costly for employers. On termination of employment, an employee who has been on long-term sick leave must be automatically paid for all the holiday that has been accrued over that period, whether or not a request had been made to carry it over.
When prearranged statutory holiday coincides with sick leave, employees should let their employer know as soon as reasonably practical. Employees are allowed to take their holiday at another time. If they remain sick until the end of that holiday-leave year, they can reschedule their holiday in the following year. If an employee turns holiday leave to sick leave, they should expect to receive sick pay only, because they are unfit to do the job during that period.
Furthermore, employees continue to build up their holiday entitlements while they are off sick, but don't have to take their holiday during that time. They can carry it over to the next year if they haven't been able to take holiday while sick.
A lot of employers don't realise that they are following out-of-date practices. Or that they need to introduce new policies to comply with employment legislation.
Sickness and holidays leaves: what happens when they coincide?
There’s particular confusion in the workplace about how different kinds of leave relate to each other when they seem to be happening at the same time.
Employee on sick leave who wants to take a holiday during that time? Can they do so?
Parents and carers have the right to request flexible working, such as working part time hours, changing the hours they work or working from home. An employer can only refuse a request for a sound business reason. If the employer refuses to consider the request or refuses it based on incorrect facts, the employee can complain to the Employment Tribunal.
Who is entitled to sick pay?
- Any of your employees who have a contract, including temps and new employees
- They must have been sick for at least four days in a row – not necessarily working days
- They must earn at least £102 per week (as of April 2011)
- They must formally tell you that they are sick
- Statutory sick pay can last for up to 28 weeks
Unpaid Wages (unlawful deduction of wages)
Has the employer been deducting money from pay without agreement?
- It is unlawful for an employer to make a deduction from pay unless:
- It is required by statute or a clause within the employment contract (eg tax, national insurance, student loan, CSA payment or pension contribution)
There is prior written consent to the deduction (eg to repay an advance)
An Employment Tribunal hears any claim for deductions from any wages, bonuses, commission or holiday pay.
An employer may claim that the deduction was lawful by arguing that your particular circumstances are legally excluded. Examples of payments that are excluded include expenses incurred in the course of the mployment or any benefits that cannot be exchanged for money, goods or services.
Employees can bring a claim to the Employment Tribunal but there are time limits. CND can advise on the procedral aspect of this.