I am a cancer support worker and have met a lady who has been told to take her sick leave as annual leave, any advice please?
Hi Kate CSW,
Many thanks for taking the time to contact us to find out about the rights of the lady that you are supporting.
As you may be aware a person with a cancer diagnosis is considered to have a disability under the Equality Act 2010 or Disability Discrimination Act 1995 (Northern Ireland). This means that their employer should not discriminate against them because of their cancer. Employers are also under a duty to make reasonable adjustments to help a person living with cancer at work. This protection is lifelong and does not depend on an active cancer diagnosis.
You mention that the lady who you have met has been told to take her sick leave as annual leave. Employers cannot force employees to take annual leave when they are eligible for sick leave. An employee can ask to take paid holiday if they are off work sick if, for example, they do not qualify for sick pay. However, if the lady in question qualifies for sick pay and has no other reason for taking the time as annual leave then she should be able to take this time as sick leave.
Statutory Sick Pay (SSP) is paid for up to 28 weeks if the eligibility criteria are met and this is the legal minimum an employer can pay. There is more information about SSP on the Gov.uk website. Contractual sick pay is an employer’s own sick pay scheme. It may be more generous than SSP or paid on top of it. It may be helpful for this lady to check her company policy relating to sick pay.
If all sick pay has been used up, it would be advisable to speak to one of our benefits advisors on our Money and Work team who can undertake a full benefit check to assess potential entitlement to welfare benefits. This specialist team are available from Monday to Friday between 8am and 8pm. You can speak to them by calling 0808 808 00 00 then pressing option 2, then option 2 again, followed by option 2.
If the employer is asking for annual leave to be used to reduce the amount of sick leave being taken this could be to avoid the hitting of triggers under the sickness absence policy.
Whilst under Equality legislation there is no automatic right for an employer to disregard any disability related absence as part of a sickness management process, this can be the case with some employers. 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 the organisation’s sickness management policy. If it does not state any disability or cancer related absence will be excluded, the question could be asked to accommodate this.
Whilst someone is off sick they build up statutory holiday entitlement, no matter how long they are off for.
Almost all workers are legally entitled to a minimum of 5.6 weeks of leave. This is known as statutory holiday leave. Under the Working Time Directive, workers must take at least 4 weeks of statutory leave during the leave year. Workers who do not use their statutory leave do not have an automatic right to carry leave over to the next holiday year. Employers, at their discretion, may agree to it though.
Contractual leave is leave that is longer than the legal minimum (statutory leave). Workers who are entitled to contractual leave may be able to carry over time off if the employer agrees. This agreement may be written into the terms and conditions of employment.
Workers unable to use their leave as they are not attending work may carry over some or all of the untaken leave into the next year. An employer must allow a worker to carry over a maximum of 20 days if the worker is off sick and therefore unable to take their leave.
Sometimes it can be beneficial to keep some annual leave available to assist with a possible phased return to work. Some employers will pay full contractual pay on a phased return; however, they are not legally obliged to do so, therefore it may be helpful to check the company policy surrounding this. If the company only pays for the hours worked on a phased return, the employer can be asked if annual leave can be used to make up the difference in pay.
I hope you find this information helpful to your situation if you need further support please do not hesitate to contact us back.
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