Esa & holiday pay

#Happy Chic

Hello Happy Chic

Thank you for your query. I’m sorry to hear of your husband’s cancer diagnosis. I’m assuming that he is off sick from work and that his employer has paid him holiday pay during his absence. It is usual that the employee request holiday pay – for example, they need to take a holiday or that they wish to top up their sick pay. It not usual for an employer to pay this without your husband requesting it. It can be possible to carry over holiday to the following annual leave period, and some employees use the leave to top up their return to work. Employees have been able to carry over their leave up to a period of 18 months. It may be that if a person has been absent for some time and is not imminently returning to work and they may risk losing their accrued holiday pay, then the employer may pay the money if it is getting to the end of the ‘annual leave period’. But they should have consulted with your husband first.  I have a link to  further information about this:

https://www.acas.org.uk/checking-sick-pay/sick-pay-and-holiday-pay

Regarding the deduction of ESA from this holiday pay. An employer should not make a deduction from wages unless there has been an overpayment. Here are some further examples of deductions under the Employment Rights Act 1996:

Deductions from pay are governed by section 13 of the act. This states that an employer is only entitled to make deductions from a worker's pay in the following circumstances.

1. The employer has a statutory duty or authority to do so- for example tax and National Insurance
2. One or more of written terms of the employment contract allow the deduction
3. The employer has the prior written consent of the worker to make the deduction and they tell the worker before the deduction is made

It is not usual for an employer to deduct ESA from a wage as it is usually paid on top of any occupational sick pay or wages. You might also like to check this with our Welfare Rights team who can look further into your rights around benefits. They can be contacted by ringing the number given below on extension 1, 2 and 2. Alternatively they can be contacted on webchat on this link:

https://www.macmillan.org.uk/cancer-information-and-support/get-help/financial-and-work/welfare-rights-advice

I suggest your husband check his contract, but also to contact HR or the wages dept – it may have been an oversight or error. If he needs to take the matter further , he could raise a grievance (check if the company has a grievance procedure) If he is in a trade union they could also support him with this matter. 

I am also including a link to our booklet ‘Work and Cancer’ that talks generally about your husband’s rights at work:

Work and Cancer 2023.pdf

I hope that the above information is useful to you both. If you would like to ask further questions, please reply to this message or you can also phone our Work Support team on the number given below – choosing extension 1, 2 and 3.

Stacey Powell 

Work Support Adviser

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