Statutory leave entitlement

Hello,
I work for a financial institution. In March 2019, I asked my employer for 5 days leave. It was refused, which can happen and was fine. I took 1 day instead as it was a family event.
In July 2019 I had an operation for an incurable disease I have. It went horribly wrong and I was off sick for nearly 8 months.
In March 2020 I returned to work on a phased basis.
In July 2020 my father in law died and I asked for my annual leave to travel to attend the funeral and be with family. I was told that I wasn't entitled to leave as I was on sick leave even though I was on a phased return basis working 2.5 days a week.
I was advised by my line manager to go back to the organization doctor to get signed off so I could attend the funeral.
I asked my employer to pay me my statutory leave for 2019 and they won't.
I just want to ask if this is correct?
Many thanks

Your annual leave continues to accrue when you are on sick leave, if you are still employed by them.

However they don't have to pay you cash in lieu of taking your leave.

Many thanks Thirsty. Unfortunately they kept refusing my requests for leave so I couldn't take leave either pre or post illness.
Thanks again for your input. Much appreciated

You can't be denied your leave indefinitely, you have to be allowed to roll it over to the next year.

Once upon a time employers tried to implement a 'use it or lose it' policy; this was scotched by EU. Wld have to do some digging to get the exact ruling & date.

But your annual leave cannot be taken away from you.

Thirsty said:

Once upon a time employers tried to implement a 'use it or lose it' policy; this was scotched by EU. Wld have to do some digging to get the exact ruling & date.

But your annual leave cannot be taken away from you.

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This is very interesting @Thirsty . My friend has 15 days unused leave this yr but her employer telling her she can only carry over 10. Be great if she could quote eu legislation at them!

ArthurMcB said:

This is very interesting @Thirsty . My friend has 15 days unused leave this yr but her employer telling her she can only carry over 10. Be great if she could quote eu legislation at them!

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Looks like they can implement 'use it or lose it' as long as they haven't prevented you taking leave and remind you that you must take it.

Thanks thirsty. Unfortunately I will lose it then, as I will be unable to return to work ever again due to my illness. That's why I was looking for the leave for 2019 as it was refused at the beginning of the year (pre-illness) and refused when I came back after the illness. Many thanks again.

In the OPs case they were prevented from taking leave.

They also were not actively encouraged to take the leave, nor is there documented evidence that the OP refused to take the leave.

Its quite a high bar & so in practice employers will have to allow carry over.

In looking to carry over leave of more than say 10 days, it would be worth including your proposal to use up the excess leave if say there's a family event or you've a long haul holiday planned.

Really sorry to hear about your illness. I think you have a valid point Mayfield. Do you have a staff handbook, it may specify it a bit more. I am thinking of staff who are on maternity leave, all their accrued leave is available on their return to work. Now this might be a specific class of workers but I would say the same thing should apply to long term illness.

You have documented proof you were denied leave both before and after your 8 month absence. So you were not able to use your leave when the opportunity arose. Then you permanently had to stop work due to ill health. They should have paid then by considering your last day to be after the leave accrued. So say your last working day was 30 June they should have calculated that your last day of employment was 20th July while you used up 15 days of accrued AL. Or however it worked out.

If you are sick and cannot take annual leave, it builds up and you are entitled to take it after you return. You can carry this leave forward for up to 15 months after the end of the year it was earned. if you leave within those 15 months, your employer has to pay you for those untaken days.

Clamball said:

Really sorry to hear about your illness. I think you have a valid point Mayfield. Do you have a staff handbook, it may specify it a bit more. I am thinking of staff who are on maternity leave, all their accrued leave is available on their return to work. Now this might be a specific class of workers but I would say the same thing should apply to long term illness.

You have documented proof you were denied leave both before and after your 8 month absence. So you were not able to use your leave when the opportunity arose. Then you permanently had to stop work due to ill health. They should have paid then by considering your last day to be after the leave accrued. So say your last working day was 30 June they should have calculated that your last day of employment was 20th July while you used up 15 days of accrued AL. Or however it worked out.

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While I agree with most of your point, when it comes to whether or not the leave was denied the burden of proof is on the employer, not the employee. In my view, as an employer, and given the evidence we have, @Mayfield05 has been treated very badly and the leave should be paid.

Peanuts20 said:

If you are sick and cannot take annual leave, it builds up and you are entitled to take it after you return. You can carry this leave forward for up to 15 months after the end of the year it was earned. if you leave within those 15 months, your employer has to pay you for those untaken

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Hey @Peanuts20 . Would you happen to have a reference point for this le do thoil?

Many thanks everyone, it very much appreciated. To clarify some questions. There is nothing in the policies that specifically references this. I've checked them and asked HR for other copies and they've said no,
With regards to the leave the first leave requested was for my child's communion. 5 days asked one day given. This is covered in policy and leave can be refused so to be honest that wasn't an issue for me. This was before my illness.
When I returned to work the following March. I worked on a phased returned. When I asked for leave to travel with the kids to my father in law, who was dying first and then died a few weeks later I was told I couldn't take any leave at all as I was sick. I argued that this was incorrect as I was being phased and should be able to take leave for those phased days but I was told to go back to the corporate doctor and get signed odd. I'd a huge issue with this as I felt it was unethical. I was desperate to get back to work and I felt I wasn't looking for leave as I was sick, it was my annual leave entitlement. In the end I had to go to the corporate doctor. The symptoms flared up, caused further damage and I haven't been able to return and unlikely will unfortunately.

@Mayfield05, from this link;
What happens to my annual leave when I am off sick?

If you become ill during your annual leave and get a medical certificate for the days you are ill, these sick days will not be counted as annual leave days. Instead, you can use the same number of days as annual leave at a later date. An employer cannot insist that you take annual leave on days you are off sick, if you have a medical certificate for those days.

You can build up your annual leave entitlement while you are off sick, as long as you have a medical certificate. If you are on long-term sick leave and cannot take your annual leave due to illness, you can carry it over for up to 15 months after the end of the year it was earned. If you leave your job within these 15 months, you should get payment instead of the leave you did not take due to illness.

It's in section 86(1) of the Workplace Relations Act 2015. WRC press release here. (I do hate the way they refer to employees as 'workers', it's not 1910, but that's an aside).