Advice - Terminating Employee Contract / Payment

[Guy Incognito]

Unfortunately we're going to have to terminate the contract of an employee who is persistently calling in sick.

This person's contract says they should be paid 1 week's salary upon termination (they only started 2 months ago) however we permitted them to take 12 days of annual leave during this period. To put it into context, they have had a further 6 days of sick leave and an attendance rate of under 70% on days they should have been in the office.

Can I legally withhold payment of some / all of the money as effectively they have taken way more holiday than they accrued?

 

[Mr D]

Not following on the 70% bit. Is there something in the contract about that?

 

[Guy Incognito]

Not following on the 70% bit. Is there something in the contract about that?

As in, they have been in the office for under 70% of the days they should have been outside of the annual leave we permitted them. In a small team it has a massive effect and we can't carry on with it. I worked it out and out of 21 days they should have been in the office they were there for 14 days. Two days off here, then a single day, then two more days, two more days etc. Called in "sick" this morning and I've decided enough is enough.

 

[Mr D]

Ok fair enough.

The annual leave accrues while they are off sick.

 

[Guy Incognito]

Yes - I understand that. So the question is if someone has taken 12 days of (permitted) annual leave over their 2 months employment, and a further 7 days off sick, can some payment be withheld as they would only have been entitled to 4 / 5 days accrued annual leave?

 

[NickGrogan]

For the holiday, yes. For sickness, no.

 

[Guy Incognito]

For the holiday, yes. For sickness, no.

Yes, that is what I thought. I'll work out what it should be and then deduct this from the money owed

 

[MikeJ]

Does their contract allow you to do that? I think it has to be specified in their contract of employment.

 

[Guy Incognito]

Does their contract allow you to do that? I think it has to be specified in their contract of employment.

Yes -

10.1 In the event of termination, the Company reserves the right to deduct from your final salary an amount equivalent to any holiday taken in excess of your accrued entitlement calculated at 1/260th of your full-time equivalent salary for each excess day.

 

[Guy Incognito]

Update on this - all done, termination paid and on to trying to find someone who isn't permanently sick

 

[Mr D]

And you haven't taken them below minimum wage?

 

[Newchodge]

Taking them below minimum wage by deducting an overpayment, which is contractually repayable from final salary, is irrelevant.