Hi Emma

Entitlement to leave will accrue while the person is off sick. I suggest that when the period of sickness absence ends, you calculate whether there have been sufficient "non-working" days in the leave year following their return from sickness absence to cover the leave entitlement. If not, they will be due some leave.

In reply to Lisa:

By non working days, do you mean the days that the individual is not paid to work, i.e the school holidays? Apologise for jumping on the band wagon, I too work for a school and have never come across this before. Although, I did query what happens to my 'Annual Leave' payments whilst on maternity leave, but because we offer a more advanced maternity package then the 'green' book, I was advised it would be covered with this. I would be interested to hear how others approach this also.

In reply to Gemma Green:

Hi - i'd disagree with Lisa to be honest - people are not paid for non working days, so you can't count them as leave. The term time only thing is a bit of a red herring. Saying they aren't entitled to their leave because they had a certain number of non working days during that time they were sick, is the same as trying to argue that a full time Monday to Friday worker isn't entitled to their holiday during sickness because they had non working days (Saturday and Sundays) off whilst they were off sick.

Basically, the amount of occupational sick pay is irrelevant. If someone is signed off sick, they cannot be taking leave at the same time (unless the request to, which they don't tend to if they are receiving occupational sick pay at full pay). Therefore, they are entitled to their accrued leave when they return to work. There has been highly publicised case law on this and it applies to part time/term time, the same as full time and regardless of the amount of occupational sick pay paid.

This is also the case for maternity leave, so you were advised incorrectly on this. Someone on maternity leave is entitled to take their accrued leave when they return to work. The organisation can't remove this right simply by paying enhanced maternity pay - they could pay full pay for the whole year and the employee would still be entitled to their accrued leave when they come back.

www.acas.org.uk/index.aspx
www.gov.uk/taking-sick-leave

In reply to Teresa:

Thank you for your comments. In the policy it says that any annual leave entitlement will be offset by any period of school closure period that occurs and there will be sufficient time within the closure period to accommodate annual leave entitlement. But support staff are not paid for school closure periods, this is what I don't understand. Are you aware of any case law on this at all? Whilst I understand that it is not the simplest of calculations as holiday pay for term time workers is added to the annual salary, In my head, for the 42 weeks that are worked by the individual in question, they are entitled to be paid the proportion of that salary that would be annual leave, but I am unsure how to calculate this? Quite rightly a full year worker would still accrue their annual leave to physically take whilst on the enhanced maternity package so why is a term time member of staff any different. It's really baffling me.

In reply to Teresa:

Hi - I would be interested to know the case law, so that I can read up on them. The TTO calculation can be complicated so if we have a worker who is contracted for 36 weeks we would be paying them for 41 weeks (an example) over the 12 month period. If we have an employee who works 52 weeks of the year off sick we always allow them to take their annual leave at another time as it is still accruing - exactly the same for those that go on maternity leave. Unfortunately TTO are only required for 36 weeks of the year, and they are unable to take leave during these 36 weeks which is why we add their annual leave entitlement to their salary. This means their monthly pay is made up of their basic pay plus their holiday entitlement.

In reply to Teresa:

Hi
Emma stated that the person is paid for leave in addition to their 40 working weeks, and paid for it, spread over 12 months. This is standard practice for term-time and term-time plus contract. These payments for leave fall outside of the 40 working weeks and therefore during the "non-working" weeks. There is no suggestion that unpaid non working weeks can be deemed as periods of leave.
Lisa

In reply to Gemma Green:

Hi Gemma
The "non working" days include days for which the person receives paid holiday and some unpaid non-working days. The occupational maternity pay is entirely separate from holiday pay entitlement. You will receive payment for the proportion of holiday that a full time/ year-round employee would receive, added to your payment for the number of working weeks you are contracted for. These payments are typically then divided into 12 equal monthly payments covering working time and paid holiday time.
Lisa

In reply to Lisa:

I would be in total agreement with Teresa and we are dealing with a very similar query to this which we are looking in to because whilst out sick they are absolutely still legally entitled to accrue leave and the issue becomes slightly more complicated when the occupational sick pay reduces as well because that annual leave should be at full pay.

This is not straight forward but I know not acknowledging this is not the answer because Teresa is right TTO workers are testing the waters with case law and I’m sure there will be more to come on this one.

I have a slightly varied question. If I have a TTO who works only 1 day a week. Is sick on that day. Feels bettee on non working days and sick again the following working day. Is this person allowed to do an self cert. Every week? Or would A self cert only be valid for 1 week?

In reply to Anjana:

Hiya
A self cert is only valid for one calendar week - after seven calendar days you need a Fit Note. It's written that way specifically to account for part time working. ;-)
Kind regards

Jackie

In reply to Jacqueline:

Thank you.
Anjana

In reply to Lisa:

variation to this question, I am leaving my TTO post and I am 6 months into the contractual year ( I’ve been there 61/2yrs) but I recently had to have 21/2months off long term sick. As we have had the summer holidays etc, I have been advised by the business manager that it is likely that I have had more holiday than entitled to this year and this will be calculated in my last pay, my question is as I was off sick in the May/June holiday, will this still be classed as me having this as holiday as I was signed off? TIA