problem employee - holiday pay whilst claming Sick pay

[gidwick]

I have an employee who has been on long time sick, in fact she hasnt worked at all this year due to a illness caused by a back problem, she had been claming SSP from me up until July this year till she reached the Mandatory 28 weeks that she could claim from me, she never returned to work for me.

In this time I learnt that she had been obtaining training for office and clerical work (paid or unpaid unknown) and has now recently got another job and has sent me a letter dated the 15th September saying she would wish to resign as a employee and requested her P45 and Holiday Pay that she has accrued!

I feel that it is unfair that as she has been well enough to train for another job whilst claiming SSP from me and now she resigns 3 months after her SSP stops and I now have to pay her almost �300 in holiday pay that i cant really afford, thinking she has played the system to her advantage!

Do I have a case for refusal, or do i have to pay her

thanks

[terambulan]

Dont pay her but if you do have to pay her, withdraw third for tax. A person is deemed an employee if you control their working hours. You didn't here as the person was constantly sick but yet fit enuf to train for alternative work, at the expense of your company.

Holiday pay is 1day per month worked.....she hasn't worked, end of.

[dzug]

Where I used to work there was a bit in the conditions of service that you couldn't be sick and on holiday at the same time.

[Maypole]

Couple of questions gidwick:
1. Do you have a contract of employment for this person?
2. Presumably the sick period was covered by a doctors note......
3. Did you follow up with her when the SSP period came to an end in July? Even a phone call?
4. What was the employee's role with you?

[buildersmate]

Agree that Maypole has the right idea - give us a few answers to these points and someone will be able to advise you further. Even without a written statement of employment, statutory employment legislation (amongst other facets) froms the basis of the employment contract between you and this employee.
Don't agree with what Tera is saying - yet. It isn't that simple.

[gidwick]

Hey Guys thanks for your responses, here is the additional info you requested :

There was no written contract with this employee as it she was taken over as ongoing employment from my old bosses, as i am aware there was no written contract with them either.

The sickness was dealt with doctors notes up until the statutory period (26 weeks) was up and we ceased to pay any more ssp, she was told verbally and was aware that the ssp pay had come to an end.

This person was employed as a bar worker until the sicknes period started and she couldnt carry on due to ongoing back problems.

Hope this helps, look forward to more responses

Thanks again

[Maypole]

Gidwick
It sounds like you never actually terminated her employment, is that correct? In which case her resignation stands.

As to the the issue of whether holiday pay is accrued on long-term sick, this thread would suggest NOT, so I suggest you write and decline her request for backdated pay.
http://www.personneltoday.com/discussionforumt hreads/2007/02/28/1/26155_c4a04e79-d4b6-4a50-9 d4f-449b5bda9f71/holiday-pay-whilst-on-long-te rm-sick.html

As far as the retraining goes, the bar work is arguably more manual than a secretarial position which she may say is easier on her back because she does not have to stand as much, reach as much and/or lift as much. I empathise with you feeling she has played teh system but you dont really have anywhere to go with that one. DOnt forget of course that at some point she will want a reference....just bear that in mind.

But PLEASE, get contracts of employment in place for the rest of your staff, the contract protects you alot more than it does your employees. ANd if you stop paying someone or expecting them to turn up for work, send them a letter terminating their employment. This neednt be complicated, you can get a book from WH SMith with personnel proformas in it for contracts, offer letters, termination letters, disciplinary reviews etc etc - you just photocopy and fill in, or amend as you prefer.

Maypole

[gidwick]

cheers for the advice once again, my accountants legal advisor thinks that it should be paid, so unfortunately i think i will have to back down and pay her, suppose this is my fault to being naive about business, but i will learn by my mistakes and get contracts into place as soon as possible,

if anyone has any updates on this situation, im going to hold back payment till friday (which is regular pay day)

Thanks

[Jenaura]

You are not liable to pay accrued hol pay for employee on l/t sick. Check out legislation eg as below - your adviser is wrong

Court of Appeal held that the right to four weeks' statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst an employee is off on long-term sick-leave. This overrules the EAT decision in Kigass and is good news for employers as it avoids employees on long term sick receiving a windfall of 4 weeks� pay per year.

[kazzalou28]

Hi, I was wondering if you ever actually paid this? I know this is too late, but I've had a similar query today and have spoken to ACAS, they say that the employee must return to work to be able to claim the holiday pay for when they were off sick. If they don't return to work then they can't claim for the holiday pay.