The Workplace – Long Term Sickness – Paul Housego

When you have people who are off ill for a long time they can tend to drop off the radar writes Workplace contributor and labour lawyer of Beers Solicitors, Paul Housego. Once SSP runs out, there is nothing to pay and the months can slip by. A while back a problem came up with a case, which said that if someone was off a year because of long term sickness then they should get holiday pay for the year (Stringer and others -v- HMRC). Quite what the position is for absences of less than a year has not really been made clear.

This has caused less of a problem than might have been thought, because holiday not taken in the holiday year is lost, unless it is asked for, but not possible to take. Most people off on sick leave do not think of asking to have paid holiday. If they then asked for the holiday at the point they were dismissed, they would only get that which had accrued in the current year. (Opinions have differed but this seems to be where we were).

However in NHS Leeds v Larner the Employment Appeal Tribunal has decided (following a case in the European Court of Justice – Pereda v Madrid Movildad) that if you are off sick you are presumed not well enough to enjoy the rest afforded by a holiday and so are entitled to carry it forward, even without any request to carry it over. This is because the employee did not have the opportunity to take holiday, being sick.

So if you have someone off sick for a long time, when you finally decide to bring the employment to an end, you will have to pay 5.6 weeks pay for each year someone has been off, pro rata, as well as full pay for the notice period of (by statute) a week for each full year worked.

Increasingly, there is every reason to take swift action to end the employment of those unfortunate enough to be off sick for a period of time. When you factor in the possibility of disability discrimination claims for those off (or likely to be off) a year, employers may think it necessary to start thinking the capability process after a relatively short period. Certainly an action plan is a good idea if sick notes come in with a 4 week period.

Inevitably this is a “heads up” and most certainly not comprehensive legal advice on what has become a complex area, and it will be worth having a discussion with your solicitor about it when the situation arises.

One more thing – in a previous piece I mentioned the Alemmo Herron v Parkwood Leisure case about whether someone tupe’d over with the right to have pay rises determined by the transferor’s pay process. No, was the answer at the Court of Appeal. The case has now been to the Supreme Court, which has referred it to the European Court of Justice. So there will be a fairly long wait for a definitive answer.”