Sick Leave/Service Days

[DavidThomas]

Hello everybody, this is my first post on here so please be gentle

I have an issue that shouldn't really be stressing me out as much as it is.
I am in full time employment and have been at the same place for 4 years now where I am eligible for full sick pay (minus shift rate of course)

I work a 4 ON/4 OFF shift pattern that consists of 2 early 12 hour shifts followed by 2 - 24 hour night shifts

I have had a condition in my left foot for just under 2 years called Morton's Neuroma which has caused me severe pain during my shifts but have taken no time off for.
After several postponed arrangements for surgery, the doctor finally set a date in stone for 23rd July. This excision of two damaged nerves in the foot generally causes workers to need 4-5 weeks of rest, un fit and unsuitable for work.

Now, the issue is, our factory has a SHUTDOWN period that my surgery coincided with.
So i required 1 shift off before the shutdown and TWO rotations off after the shutdown (total of 9 sick days)

Because of the shift pattern, the shutdown consisted of 7 shifts off for us.
My surgery caused me to take the LAST shift off before the shutdown, so in short I fell under "UNFIT for work" BEFORE our shutdown period.

Now, I have looked into my rights and have read allot about sick days whilst on holiday entitlements online and with colleagues.

Im right in thinking that under the European Court of Law that any employee who is sick during their annual leave can rearrange those days elsewhere in the same year or carry them onto the next year if necessary.
I believe a legal precedent was set around 2009 in the UK that within European law, this is the case for all employees of any sized business.
I have this pending with my union representative at work.

I shall be fit to return on 28th July next week according to my doctor.

But even aside from the shutdown issue, my supervisor (who i haven't even discussed my shutdown issue with) is trying to mark my actual days off work as MY personal service/holidays (9 normal shifts)
Please clarify my entitlements, I know my rights, but I just feel pressured into using all my accumulated service days for sick leave which I have all the doctors notes for.

So in short,
A) I don't have to use my personal accumulated holidays for the 9 sick days off?
B) I can relocate my 7 shutdown days elsewhere in the year or next year?

I hope this is clear enough to understand. I just feel while I'm struggling to get what I'm entitled to with my union representative, I'm being pressurised into losing my service days (which shouldn't even be an ISSUE) with my supervisor.
I am a full time employee who has a good attendance record and attitude.
While im resting my foot up, I'm dreading the stress of returning to work next week to arguments and disputes.

Thank you for reading this, I'm sure you have better things to do lol.
any comments are very welcomed indeed.
Kind Regards,
Dave

[Kati]

Re: Sick Leave/Service Days

Hi DavidThomas,

I'm sure someone will be along to advise you soon ... we have lots of knowledgeable people on here :tinysmile_grin_t:.

[Johnboy007]

Re: Sick Leave/Service Days

I hope this answers your questions and concerns.....
Although the case does refer to a Spanish Unions, it will also apply to the UK.
And I refer to the section that states .....
'particularly important principle of European Union social law from which there can be no derogations'

Earlier this week the European Court of Justice (ECJ) ruled that the EU's Working Time Directive bans "national provisions" that state that workers are not entitled to reschedule paid annual leave covering a period of illness they experienced whilst on a break.
In ruling over a case involving Spanish trade unions the Court said that it was "settled case law" that the right to paid annual leave was a "particularly important principle of European Union social law from which there can be no derogations" and that the right had been written into both EU employment law and the text outlining the cornerstone rights underpinning all EU legislation.

It also said that the right "cannot be interpreted restrictively" and that ECJ case law had already determined that individuals that either fall sick during a period of "previously scheduled annual leave" or prior to their annual leave but remain sick during an overlapping period of that leave, are entitled to reschedule holidays at a later date. The Court added that it is "irrelevant" when a worker falls sick when determining whether workers are entitled to paid annual leave on top of sick leave.
"The worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose," the ECJ said in its ruling. "It would be arbitrary and contrary to the purpose of entitlement to paid annual leave ... to grant the worker that right only if he is already unfit for work when the period of paid annual leave commences."
In that context, the Court has already held that the new period of annual leave – corresponding to the duration of the overlap between the period of annual leave initially scheduled and the period of sick leave – to which the worker is entitled after he has recovered may be scheduled, if necessary, outside the corresponding reference period for annual leave," the Court said.
"In the light of all the foregoing ... [the Working Time Directive] must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work," it ruled.
However, employment law expert Maria Passemard of Pinsent Masons, the law firm behind Out-Law.com, said that there is uncertainty among employers over what procedures they should follow to confirm that individuals were ill whilst on holiday.
"When we discuss this issue with clients one issue that frequently arises is how an individual should prove that they were ill when they were away on annual leave," Passemard said. "They could return from their holiday in Spain and look very tanned and refreshed but complain of having an awful time because they have been unwell."
"Should the employer ask them to phone in sick on their first day of absence (despite being on annual leave) in accordance with the employers normal sickness absence procedures and outline that they want to reschedule their annual leave sometime in the future? What if it is not possible to call in due to time difference if they are in long haul destinations?" she said.
"Should companies require them to obtain a sick note from a doctor whilst on annual leave even for absence of one day in order to prove that they were ill? If the absence is for less than seven days a sick note would not be required under current legislation." Passemard added. "Some companies might want to consider amending their sickness absence policies to require employees who are ill whilst on annual leave to report the fact they are ill to their manager and to obtain a sickness certificate to prove their illness."
Passemard also said that the ECJ's ruling would also leave businesses wondering what to do if employees are consistently or coincidentally ill during periods of annual leave and where they suspect those workers are abusing the system.
"If an employee lies about their illness then this would be grounds for disciplinary action but it is, of course, incredibly difficult to prove," the employment law specialist said. "There is of course the genuine issue that some people will be unwell when they are on annual leave and this can often happen where they are in particularly stressful jobs. When those people stop and slow down/relax they can become ill. Those who are genuinely ill in such circumstances would argue that they should be able to take that leave again as the annual leave did not provide the rest they needed."
This ruling was in 2012.
So it looks like you can be sick during your holiday period, and rebook those lost days at a later date.

[DavidThomas]

Re: Sick Leave/Service Days

Right, I was worried there for a moment that the laws have all been altered since my sick leave! But it still stands which is good.
Now I have just spoken to my supervisor and he told me to send my sick notes into work. He should have told me this is what I had to do before I took leave though shouldn't he? I have never taken leave from work in my entire life and thought I was meant to bring them in upon arrival to work. I hope this doesn't affect my situation.
I am posting them right now.

It is very stressful business this! And I can see how that European rule can be abused by workers, but it is FAIR and JUST for genuine cases like mine that are simply HEALING in bed during annual leave.

Thank you for your post 007

it's much appreciated
kind regards,
Dave

[Johnboy007]

Re: Sick Leave/Service Days

Right, I was worried there for a moment that the laws have all been altered since my sick leave! But it still stands which is good.
Now I have just spoken to my supervisor and he told me to send my sick notes into work. He should have told me this is what I had to do before I took leave though shouldn't he? I have never taken leave from work in my entire life and thought I was meant to bring them in upon arrival to work. I hope this doesn't affect my situation.
I am posting them right now.

It is very stressful business this! And I can see how that European rule can be abused by workers, but it is FAIR and JUST for genuine cases like mine that are simply HEALING in bed during annual leave.

Thank you for your post 007

it's much appreciated
kind regards,
Dave

Hi Dave, well you can't really take your certificates into work when you're on holiday, can you?
As long as the employer gets them.