Annual leave abatement

Hi,  I was off work for 3 months and 2 weeks at the start of the year after 3rd cancer diagnosis. Work policy is that leave is abated after 3 months sick leave meaning I look likely to lose approx 50 hours of leave.  Do I have a case that my leave shouldn't be abated in this way - and should I be asking for any sick leave which is linked to my cancer to be treated any differently? Concerned that may lose more if I need to take any more time off - I've another area of cancer which is being monitored just now but no plans for any treatment at moment, but of course that may change. Any advice gratefully received

  • Hi ,

    I am sorry to hear that your health situation and the difficulties that you are experiencing with regards to your annual leave entitlement.

    As you have a cancer diagnosis you are considered to have a disability under the Equality Act 2010 or Disability Discrimination Act 1995 (Northern Ireland). This means your employer should not discriminate against you because of your cancer. Your employer is also under a duty to make reasonable adjustments to help you at work. This protection is lifelong and does not depend on an active cancer diagnosis.

    I have attached a link our booklet “Your Rights at Work’”, which explains more about the Equality Act and how you are protected in the workplace and the employer’s duty to make reasonable adjustments for disabled employees.

    Statutory holiday entitlement is built up (accrued) while an employee is off work sick no matter how long they are off. The statutory holiday entitlement in the UK is 5.6 weeks per year for full time workers.

    You have not mentioned where your sick leave has fallen in your annual leave year and so it may be useful to know any statutory holiday entitlement that is not used because of illness can be carried over into the next leave year. This is a maximum of 4 weeks (20 days) pro-rata if you are part-time. If you carry over your statutory holiday of 4 weeks, this will expire 18 months after the end of the leave year in which it was accrued.

    If you have returned before the end of your leave year, for example if your leave year runs from April to March then it you can then take your annual leave or ask your employer if they are willing to pay you for this instead. Your employer may not agree to this. You would still be able to carry over unused annual leave as per your employer’s annual leave policy. This is usually a maximum of 5 days which needs to be taken within a certain period. Again, this will be explained in your employer’s policies.

    Any policy written by an employer should not be written in a way that could disadvantage a disabled person. In your situation you may argue your work’s policy could potentially be considered discriminatory due to the likelihood that you may need to take more than 3 months off for your cancer treatment. You should also not be forced to use annual leave instead of sick leave.

    You have not mentioned in your email however it may be useful to know that under the Equality legislation there is no automatic right for an employer to disregard any disability related absence as part of a sickness management process.

    Some employers include in their sickness and absence policy that they will exclude any disability (cancer) related absence from sickness management triggers. This means that if an employee required time off for cancer treatment, these occasions would be excluded from hitting sickness management triggers. This is to ensure that people who are protected under the Equality Act 2010 or Disability Discrimination Act 1995 are not at a disadvantage in the workplace. It may be worth checking your organisations sickness management policy. If it does not state any disability or cancer related absence will be excluded, you could ask if they could accommodate this for you to ensure you are not being treated less favourably.

    Although it is not a reasonable adjustment for an employer to give higher ‘trigger points’ to a disabled employee when they are off sick compared to a non-disabled employee. An employer does still have to proceed carefully when looking at capability proceedings in the case of a disabled employee. This is because a disabled employee should not be treated less favourably.

    I hope you find this information helpful to your situation. If you need further support please do not hesitate to contact us back.

    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email.

    Kind regards,