Can Employer Take my Holidays Away?

Q.Can my employer take some of my holiday entitlement without my consent to cover a sickness period?

A.

Like many employment questions, this seems simple but is far from easy to answer in a clear cut way because there are so many different regulations that can apply. It also depends on the legal relationship that you have with your employer and what contractual terms you have, if any. It also, to some extent, comes down to the best choice for you, regardless of whether or not your employer is trying to force you to do this.

Let's try and break it down step by step.

Different Employment Situations

Firstly, you will need to decide how you are employed. Although the governments of the European Union are trying to make all employment law and regulations apply to all employees across the board, this process is not yet complete. Full time and part time employees are nearly on a level footing but agency workers and contract workers are still lagging behind in terms of the employment rights and obligations.

We'll assume for the moment that you are full or part time as an agency or contract worker is not likely to have any holiday entitlement with the person they work for in any case (that's as opposed to the agency involved).

If you have a contract it may state how many days off sick you can take with full pay and there is often then a second period where they will allow you to be on reduced pay. Eventually those periods will run out and you and the company will have to get together to decide how to treat your case, but until that happens, you cannot be forced to take holiday instead of sick pay.

Statutory Sick Pay

If there is no sick pay stipulation in your contract, there are government minimum guidelines which apply to employees. Employers must pay Statutory Sick Pay (SSP) to employees, not for the first three days of sickness, but for the following twenty-eight weeks. However, SSP is only (currently) £75.40 per week, which may not be enough for many people to live on. The sickness has to be recorded for SSP to kick in, with a medical certificate from your doctor, which should be provided before the eighth day of the sickness period.

The bottom line is that an employer cannot force you to take holiday entitlement instead of sick leave, as long as you can prove that it is genuine sickness. But it might be a better choice for you, as taking holiday instead may mean that you will be better off financially, unless you have a contract with generous sick pay allowances.

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