Statutory Sick Pay and Bank Holidays

Statutory Sick Pay and Bank Holidays

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For an employee who;

i) has been off sick (genuinely) for a little while (and continues to be so); &

ii) has exhausted any (enhanced) company sick pay entitlement; &

iii) normally works full time Monday to Friday; &

iv) is receiving SSP at the official rate (£87.55 per week [or £17.51 per day]); BUT

v) has a clause in their contract of employment stating that they are entitled to the normal English bank holidays (in addition to their core 20 or 25 days)....

....are they entitled to full pay for any bank holidays that fall within their periods of (continuous/ongoing) illness?

Replies (38)

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By dnicholson
20th May 2014 16:32

Yes

Employees get SSP for bank holidays. If the Monday would have been a working day if it wasn't a bank holiday, class it as a working day for SSP.

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By Democratus
20th May 2014 17:04

So that's actually No to the OP

"are they entitled to full pay for any bank holidays that fall within their periods of (continuous/ongoing) illness?"

Only SSP. Bank holidays in Ts & Cs are a bad thing -  a holiday is a holiday and reference should be made to specific closure days rather than Bank holidays, which are variable depending on the the weird way we seem to operate them in the UK.

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By dnicholson
20th May 2014 17:12

Yes and No?

Title 'SSP and bank holidays' - Yes.

'Has exhausted company sick pay' and 'is receiving SSP' -Yes

'are they entitled to full pay' - Maybe, but that's nothing to do with SSP.

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By Democratus
20th May 2014 17:15

Yes and No? - and Maybe

Yes I agree with this. 

Attempting to clarify seems to have made it worse ((:- ( )

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Old fat furry cat-puss
By bagpuss1968
21st May 2014 07:40

Many thanks for the responses

Many thanks for the responses and suggestions so far. 

My issue still remains the same it that in the circumstances described as initially set out (which are factual and I cannot change), the employee needs to be paid for the upcoming bank holiday and (I'm pretty certain), that this needs to be at a rate of either;

1. their full working day daily rate; or

2. the minimum allowed by the law (which is £17.51, equivalent to the SSP daily rate)

....and I'm trying to figure out which one it should be?! :-)

 

I suspect that we are in a similar position to many companies in specifying that an employee has a number of core days holiday plus entitlement to English Bank Holidays.  I can, however, absolutely see the logic behind not identifying Bank Holidays as being specific days off that individuals are entitled to.  However if we did have this provision in place then presumably we would only pay SSP on Bank Holiday Monday and the employee would have a further full day's normal holiday when they return.  For this reason, I am beginning to think that in our current situation, it might be that full pay on Bank Holiday Monday is the correct thing to do......

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Replying to Paul D Utherone:
RLI
By lionofludesch
21st May 2014 08:29

Working through your holidays

bagpuss1968 wrote:

For this reason, I am beginning to think that in our current situation, it might be that full pay on Bank Holiday Monday is the correct thing to do......

I'm thinking SSP, plus a day in lieu later.  Otherwise, it could be said that you've not granted the full 5.6 weeks' holiday.

They have to take it - you can't just pay people double time for not having a holiday.

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Replying to kevinread:
Stepurhan
By stepurhan
21st May 2014 08:46

Double-counting

lionofludesch wrote:
I'm thinking SSP, plus a day in lieu later. 
Surely this means that this particular employee is getting this bank holiday counted twice. They get paid as if they had worked (albeit only SSP) and they get a day of holiday that they will also presumably be paid for. The fact is that they are getting the day's holiday the same as everyone else, they are just unfortunate enough to be sick on that day.

If full pay is paid, despite the fact that this is an ongoing period of sickness, then that would be exceeding your contractual sick pay. The fact is, even if the business were open on that day, the employee would still be off sick.

I think doing either of these will give you problems with other employees, as they will see the sick person as receiving preferential treatment. Maybe legal advice is the way to go here.

The thing to remember is that SSP is not actually a daily rate, it is a weekly one. The daily rate is simply calculated based on the number of days someone normally works. If you pay a day's SSP for the bank holiday and four days for the working days in the week, they still get the same weekly amount they are entitled to in any other week.

 

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RLI
By lionofludesch
21st May 2014 08:27

Minimum Holidays

The minimum holiday requirement is 5.6 working weeks - 28 days for a five-day week.  It was altered from 4 weeks + bank holidays because of the anomalies it raised.

Firstly, a lot of folk work parttime these days.  Secondly, a lot of folk have to work on bank holidays.  Thirdly, a lot of bank holidays are fixed to Christian festivals and we're a multi-cultural society.

Best to go with the 5.6 weeks these days.  Employers can still choose when to compel workers to have specific days as holiday by closing the entire business down.

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RLI
By lionofludesch
21st May 2014 10:48

Misunderstood ?

I think you may be misunderstanding what I said.

He's sick on Monday and gets a day's SSP.  He's on holiday another day (of his choosing).

I don't think you can be sick and on holiday on the same day.

You nevertheless need to be on holiday for 5.6 weeks (minimum).  So if next Monday is a sick day, not a holiday, he needs a replacement holiday some other time.

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By Richard Willis
21st May 2014 11:11

I have always understood

that you cannot be sick and on holiday on the same day, as lionofludesch has said.  The fact is that many people may fall sick DURING a holiday and not bother to claim the extra days.  However in this instance, as they are already sick, I would go for the SSP and a day off in lieu.

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Stepurhan
By stepurhan
21st May 2014 11:25

Double-counting concern

I still think there is double-counting.

The fact is it is entirely possible for someone to be both sick and on holiday on the same day. The question is what payment should be due for that in this case. 

If the employee was just away on the bank holiday Monday in the normal fashion, then they would get paid as normal, even if they were unfortunate enough to be sick that day. If someone takes a week off and is sick that entire time, they don't get that holiday back.

This is, of course, an argument for paying them full pay as a day's holiday rather than a day of SSP. For reasons I gave above, I think this is likely to foster resentment among other employees, hence my suggestion of getting legal advice. How bank holidays are treated in the contract is likely to be vital to the treatment.

We subscribe to an employment advice service for such matters. Your accountant may do the same.

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Replying to fujifuji:
RLI
By lionofludesch
21st May 2014 11:33

Indeed there is

stepurhan wrote:

I still think there is double-counting.

The fact is it is entirely possible for someone to be both sick and on holiday on the same day. The question is what payment should be due for that in this case. 

If the employee was just away on the bank holiday Monday in the normal fashion, then they would get paid as normal, even if they were unfortunate enough to be sick that day. If someone takes a week off and is sick that entire time, they don't get that holiday back.

This is, of course, an argument for paying them full pay as a day's holiday rather than a day of SSP. For reasons I gave above, I think this is likely to foster resentment among other employees, hence my suggestion of getting legal advice. How bank holidays are treated in the contract is likely to be vital to the treatment.

We subscribe to an employment advice service for such matters. Your accountant may do the same.

The double counting is on your part, with respect.

Of course he can be sick on holiday.  That's not in dispute.  What he can't do is be paid for being sick and be paid for being on holiday.

If you merely pay SSP for the holiday and count the holiday as used, you're not fulfilling the minimum paid holiday requirements.  They require him to be paid his full daily rate.

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Replying to Duggimon:
Stepurhan
By stepurhan
21st May 2014 11:51

Point taken

lionofludesch wrote:
The double counting is on your part, with respect.

Of course he can be sick on holiday.  That's not in dispute.  What he can't do is be paid for being sick and be paid for being on holiday.

If you merely pay SSP for the holiday and count the holiday as used, you're not fulfilling the minimum paid holiday requirements.  They require him to be paid his full daily rate.

Thinking it through again, I believe I agree with you.
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RLI
By lionofludesch
21st May 2014 11:26

Might be different ....

..... if he had more holiday entitlement than the minimum.  So that he still had at least 5.6 weeks off.

Not that I'd be impressed with my employer if he tried to pull that one.

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By Sandnickel
21st May 2014 11:41

Agree with Lion

If you take a week's holiday and are sick you can ask for the week to be treated as SSP and effectively your holiday days are "reinstated".

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Replying to penelope pitstop:
By Democratus
22nd May 2014 08:35

More to it

Sandnickel wrote:

If you take a week's holiday and are sick you can ask for the week to be treated as SSP and effectively your holiday days are "reinstated".

In order for this to be the case the employee needs to tell the employer, using the employers particular rules for reporting sickness, and have the appropriate fit note in order for those holidays "not enjoyed" to be replaced; these days after the reporting day and may be reinstated as holidays.  However as I understand it this still testing in the UK, It's based on a Spanish claim (I think).

 

In the case of the OP the holiday is the bank holiday, the day is a sick day and the rate to pay is SSP. (IMHO). The employer is of course at liberty to replace this holiday day with one in lieu should that be appropriate.

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Replying to Insolvency Practitioner:
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By lionofludesch
22nd May 2014 09:20

"At liberty"

Democratus wrote:

In the case of the OP the holiday is the bank holiday, the day is a sick day and the rate to pay is SSP. (IMHO). The employer is of course at liberty to replace this holiday day with one in lieu should that be appropriate.

So - on the assumption that the employee gets 27 days holiday at full pay and one at SSP - how do you feel that the employer has satisfied the minimum holiday requirements if he chooses not to grant a day in lieu ?

 

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Replying to Insolvency Practitioner:
Stepurhan
By stepurhan
22nd May 2014 09:28

More agreement

Democratus wrote:
In the case of the OP the holiday is the bank holiday, the day is a sick day and the rate to pay is SSP. (IMHO). The employer is of course at liberty to replace this holiday day with one in lieu should that be appropriate.
The point lionofludesch is making, which I now agree with is that it cannot be both a sick day and a holiday. To go back to my being sick on holiday example, if an employee happened to be sick on a bank holiday then you would not normally reduce their pay for that day to SSP. They are using a day of holiday and it is their misfortune that they happen to be sick at the time.

If you pay SSP you are treating it as a day that they would have worked were it not for sickness. If it is a day that they would have worked, it cannot be a holiday day at the same time. So either SSP (treating as a working day with employee not attending due to sickness) or full pay (treating as a day when the employee did not attend because they had a day off) but not both.

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RLI
By lionofludesch
21st May 2014 12:30

Marvellous

.....because it's not clear how SSP and holidays interact from the Government blurb and it's nice to have a consensus from the learned people on this forum.

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By Foxman
22nd May 2014 09:00

Holidays accrue, throughout the period of employment, whether the individual is working or not would be the basis of my opinion. If you have an employee who has three months off sick they will have accrued 1.4 weeks holiday. Similarly if they have 9 months SMP they have accrued 4.2 weeks holiday. Therefore the two should be treated separately with statutory payment for the sick period and statutory (contractual) holiday entitlement available upon return to work. 

All of which is repeating what has been said before, pay SSP for the Bank Holiday and they will have the holiday to take at some point in the future.

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By Democratus
22nd May 2014 09:37

OK - I see

The issues here is Paid holiday. 

If the employer had a paid sick pay scheme and the individual was off the employer would pay 1 days pay (at contract rate) and offset SSP. Hence complying with a paid holiday day.

 

If there is no company scheme the employer will either pay 1 day at normal holiday rate or SSP and allow a further day in lieu.

The "at liberty" was if the annual days were in excess of WTD in any case. If more than 5.6 weeks is the normal for the company then they may have some liberty.

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RLI
By lionofludesch
22nd May 2014 11:01

Logical

Broadly agree with that.

It's OK as long as the minimum requirements are met. And as long as that interpretation fits in with the employee's contract - which it may not, actually.

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By Bossyboots
22nd May 2014 12:46

SSP & Holiday Pay

My understanding is as follows:

Agree that the statutory minimum holiday entitlement is 5.6 weeks (i.e. 5.6 weeks of whatever a worker's standard week is) paid annual leave - to include all statutory (bank holiday) days. Straightforward under normal circumstances.

Company Holiday year runs from 01/01 to 31/12, and the employee falls sick in March.

Employee is entitled to receive SSP at the current rate, after any relevant waiting days, as a minimum (contractual sick pay may be more generous)

Should a public holiday fall within the period of sickness absence, SSP will continue to be paid as normal, but the "holiday" day will remain in the employees 5.6 weeks bank

He/she will continue to accrue holiday pay entitlement, and upon returning to work will still have the balance of the 5.6 weeks available until the end of the holiday year

Entitlement      5.6 weeks       (say 5 day week)         =   28 days

Holiday used Feb                                                          10 days

Balance remaining                                                         18 days

Sick 5 weeks in March/April (which includes 2 public holidays)

Paid standard SSP for the qualifying days of the full 5 weeks.

Holiday balance upon return to work                                18 days (none used whilst sick) 

Hope it helps!

 

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RLI
By lionofludesch
22nd May 2014 12:47

Mine too

Perfect analysis, imho.

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By Richard Willis
23rd May 2014 16:39

See

https://www.gov.uk/taking-sick-leave

'Any statutory holiday entitlement that isn’t used because of illness can be carried over into the next leave year. If an employee is ill just before or during their holiday, they can take it as sick leave instead.'

Interesting!

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Stepurhan
By stepurhan
23rd May 2014 17:18

Isn't the reverse true also?

You have run out of holiday, so you take a "sickie" instead. ;-)

I have known people who really did treat sick days at full pay as if they were an additional holiday entitlement.

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Replying to DJKL:
RLI
By lionofludesch
23rd May 2014 18:44

Well spotted

stepurhan wrote:

You have run out of holiday, so you take a "sickie" instead. ;-)

I have known people who really did treat sick days at full pay as if they were an additional holiday entitlement.

Indeed - and I have an employer who no longer pays sick pay beyond the statutory minimum as a result.

It's worked wonders for attendance.  Especially amongst young people on Mondays.

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Old fat furry cat-puss
By bagpuss1968
23rd May 2014 21:55

Thank you once again, folks....

I can follow entirely the analysis of Bossyboots, however the problem we have is that the employees' contract states that they are entitled to bank holidays off (at full pay).

What most employees are concerned about is how much they get paid and to apply the approach suggested by Bossyboots in our case would undoubtedly bring howls of protest from the employee concerned!!  It would also (potentially) breach that employment contract term, even though an additional days holiday would be added on in lieu.

Back in the real world, :-), this issue of whether the employee has had enough holiday in a particular year would only come into focus if there were a complainant; something that I believe to be unlikely in these circumstances.

On balance, I my thinking is to pay the bank holiday at full pay, justifiable because this a specifically identified holiday on a particular date, which cannot be moved (according o the employment contract).  Whist not a conclusion for the purists, I believe that on balance, this would be the most equitable solution.

 

  

 

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RLI
By lionofludesch
24th May 2014 10:10

Bank Holidays

Maybe you need to change the terms of the contract to be more flexible and fit in with today's world.

I've no idea why we have bank holidays these days.  Everything's open anyway.  Except banks.

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Replying to atleastisoundknowledgable...:
By Democratus
26th May 2014 08:44

yep

lionofludesch wrote:

Maybe you need to change the terms of the contract to be more flexible and fit in with today's world.

I've no idea why we have bank holidays these days.  Everything's open anyway.  Except banks.

Typed from my desk at work.

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RLI
By lionofludesch
26th May 2014 09:20

If it was raining ....

..... I'd be working too and having a day off when it's sunny.

One advantage of working from home.

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By aburt01
28th May 2014 10:29

You may not want to

alter the contract to 5.6 weeks or 28 days annual leave, since you close the office/place of work on Bank Holidays.  Shut-downs of this type are typical to industries that still close factories for 2 weeks maintenance in the summer or over Christmas. 

Since 28 days is the stat minimum holiday, IF you want the 28 to include the (typically) 8 bank holidays because you shut the place of work, you could perhaps add a clause to say bank holidays are holiday except when off sick, then a day-in-lieu is available. (Since you can't be seen to reduce holiday below 28 for the year just because they were sick)

Just another possibility - thanks ECJ for the conundrum.

Oh, and don't forget to itemize all holiday pay on the payslip. (Smiles)  

 

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RLI
By lionofludesch
28th May 2014 10:34

No need

The employer still has the right to specify when holidays are taken.  If he wants to close the office/shop/factory/whatever down, he can do.

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By aburt01
28th May 2014 10:56

Yes, indeed... in my experience

it's always better to clarify in a contract how you are going to treat such things, or at least have a employer's handbook that covers all these situations. What if I work part-time, don't work Mondays, etc. etc.  Otherwise I will expect to take the 28 days when I like.

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RLI
By lionofludesch
28th May 2014 11:00

Couldn't agree more

If an employer decides when his employees take all 28 days of their holidays, I'd expect him to spend much of his time interviewing prospective new employees.  :-)

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By aburt01
28th May 2014 11:08

www.gov.uk
Further holiday reading ... (smiles)https://www.gov.uk/holiday-entitlement-rights/booking-time-off-

 

When leave can and can’t be taken

Employers can:

tell their staff to take leave, eg bank holidays or Christmasrestrict when leave can be taken, eg at certain busy periods

There may be rules about this in the employment contract or it may be what normally happens in the workplace. The notice period for this is at least twice as long as the leave they want their staff to take.

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RLI
By lionofludesch
28th May 2014 12:21

You don't

I've never heard of such a thing.

Though I can see that could be helpful.

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By aburt01
29th May 2014 14:47

holidays paid on a payslip ...

... well, as I understand it, it is in the spirit if not the exact letter of the Working Time Directive that, if any calculation was entered into, e.g. to calculate holiday pay, overtime etc. etc. weekly paid, last 12 weeks average pay used, the employee must at least be able to see how the calculation was derived, i.e. at what rate the holiday or overtime pay was made. (My "fixed salary" colleagues don't seem to have this challenge, see below...)

So especially if you have variable weekly earnings, and since you are not allowed to "roll-up" holiday pay into the hourly rate, as per ECJ judgement. "... rolled-up holiday pay contravenes Working Time Directive...", ergo, a calculation has to be performed to produce a holiday pay figure, then, as a minimum the rate and total holiday pay should appear on the payslip.

https://www.gov.uk/understanding-your-pay/working-out-your-pay

One might also describe it as good practice, you would show the overtime rate, so why not the holiday rate.  Though it is true that a "fixed" salary seems to be exempt from this "rolling up of holiday pay" ruling. I am not a legal brief, so check this out for yourselves naturally.

 

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