Sickness

[pele33]

hi, i have been off sick from my company (a big foodstore),after i injured my knee while working, i now have to have an operation, which is next week,i have been told its about 6 weeks recovery, as with the company holidays run from april to april, i am owed a weeks holiday heyhave sad will loss this as i am off sick, is this right, and also they do 12 week sickness pay, then after that it is ssp, should my company pay full pay to me until i am ready to return to work as i injured myself at work, so not my fault,that i am off, i have been off since dec so the 12 weeks is coming to an end...

[factor-fiction]

>"as i injured myself at work, so not my fault"

Has it been accepted by the employer or established that the accident was the fault of the employer? Have you submitted any form of personal injury claim?

[pele33]

yes i have...

[factor-fiction]

I would ask at work but maybe you don't trust them and want to know the legal position before you ask. I'll see what I can find. I think it may depend though on whether the company accepts liability

[echokilo]

Company sick pay provision, and their potential legal liability for your injury are two entirely different policies. In my view your sick pay will expire when it expires - and your claim for the accident will be looked at by their insurers and possibly by the HSE and any payout would then take account of the fact that you are out of pocket salary wise as well as any compensation element. I am not a legal expert, just referring to a similar case I am aware of.

[factor-fiction]

I agree, echokilo, but some companies who want to appear caring may choose to continue paying OSP in certain circumstances. However as this might imply liability or may set a precedent I can see that most would choose to stick to their sickness rules.

[buildersmate]

Echo, I think your comment is entirely correct. They are two separate things and the company will not extend the sick pay now - merely compensate later if liability for the injury is accepted - including for the loss of pay for any period of earnings loss once the company sick pay ran out.

[factor-fiction]

There is some info here (section 5.3) about the right to carry forward leave not taken until the employee returns to work, even if that means in the next holiday year
http://www.lawsociety.org.uk/advice/practice-notes/holiday-entitlement/#cc5.3
buildersmate is the main expert here though

[factor-fiction]

Hello buildersmate- I agree about sick pay provisions but was thinking that the employee had nothing to lose by asking, although I'm pretty certain what the answer will be.

[pele33]

thanks everyone for your comments....

[Peter Pedant]

Pele 33 you need to join a union - now if necessary
These questions are by no means uncommon

and the answers are 1) the holiday has to be carried over by law -
2) they wont pay more sick pay than they are obliged (12 wks in your case) and
3 ) and any more loss of earnings you will have to sue them

join a union. they should greet you with open arms ( as the questions are so straightforward and they should say to everyone else 'join our union: look how we helped Pele ) .

Altho this is not applicable to your facts.....
see how Unite helped one of our ex-employees
http://www.guardian.co.uk/society/2012/jan/09/nhs-manager-race-discrimination-case

I can tell you the amount of money made our eyes pop out of your heads.

[buildersmate]

I didn't think we were permitted advertising on Answerbank - that's why the site exists.
By the way, have you seen just how much the Secretary of Unite gets paid? - quite scandalous.

[Peter Pedant]

Not advertising.... I am not and neva have been a member of Unite.

I do not regard it as advertising but more common sense to advise people who are not members of a union to get unionised
It is clearly in their interests.

Yeah union officials paying themselves too much
Do you realise that Elliott Browns employer paid himself £ 200k/y ?

[buildersmate]

Don't know who E Brown's employer is.
But Derek Simpson was on £180k/pa before accepting a £360k severance payment from Unite a couple of years ago. So Len McCluskey is probably on similar.
Talk about fat cats feeding off employees.

[pele33]

my company has said that if i don't take the weeks holiday before the end of march then i lose it, i have said that i am not due back until april, they have said that i could recover quicker and get back early then they would let me take the week, but i can not have it if i am off sick..

[buildersmate]

Then the employer is almost certainly not understanding the Working Time Regulations 1998. Refer to the link that Factor gave you above. The gist is that if an employee cannot take holiday due to sickness before the end of a holiday year, the holiday gets transferred into the following year and the employer doesn't get a choice in the matter. There have been ET rulings that confirm this, I believe.

[pele33]

thanks, i few phone calls tomorrow i think...

[boxtops]

I can't speak for all employers, but people who work in the NHS get their holidays added on to their alllocation - it accrues while you are sick, and you can take it when you get back.

On a different tack - if this accident happened at work, was it recorded in the accident book, and have your employers admitted responsibility for the accident? You may well have a justifiable claim under their employers liability policy. If you are not in the union (if the store is unionised), you can still speak to union reps who would help you to start off a claim. You could include loss of earnings after 12 weeks in that claim.

[boxtops]

You could always speak to ACAS too, pele - they are very helpful about this sort of employment matter - their contact details are on thier website.

[Nini74]

don't forget that many employment laws can be superseded by a written contract. nobody has asked pele whether he has a written contract of employment and what that says as to carrying holidays over when sick. in my job, they don't get carried over. if you're off sick, you lose the holidays. if you're making a claim, then the loss of holiday and any loss of earnings can be included in your special damages (if the claim is successful) - i know that doesn't help you at the moment, but at least there is a light at the end of the tunnel. good luck

[factor-fiction]

Have you got a link for that please, nini74- i.e. that a contract can override employment laws on the issue of sick pay?