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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I contract to a company that in turn has a contract with a

Customer Question

I contract to a company that in turn has a contract with a major telecoms company, the work is passed on a daily basis to the company I contract to who then in turn turn pass work to the engineers such as myself. I am at present having a dispute with them over Annual leave requests, they telling me too many engineers off for period required, yet they don't pay my A/L, taxes, Insurance or sick pay. I have to give my umbrella company that deals with my finances one weeks notice. I also am on a an agencies books who I am guessing are contracting out, I send my weekly timesheet to them. the company I contract to supply the vehicle, tools and some of personal protection clothing but I pay my own fuel. I have given 3+ weeks notice to them. where do I stand please?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know what your specific question is.

JACUSTOMER-54vab2l3- :

my question is; where do I stand when I comes to taking time off. I feel as self employed as long as I give sufficient notice, in this case 3+ weeks then that should be sufficient? I have been told they have to have a certain amount of engineers to meet their contractual requirements so wont allow me to have this time off

JACUSTOMER-54vab2l3- :

says you answered my question but I can see your reply?

JACUSTOMER-54vab2l3- :

cant I meant to say1

Ben Jones :

hank you for your patience, can you please clarify if your contract guarantees you time off if you give the required notice, or does it simple say that some notice is required, without any guarantees?

JACUSTOMER-54vab2l3- :

the one I have with my umbrella company states one week. the one from the company I contract to states time off, circumstances permitting, i.e engineers needed to meet contract

Ben Jones :

The one with the umbrella company - does it guarantee the time off if you give the week's notice?

JACUSTOMER-54vab2l3- :

i believe so, yes, they deal with my finances so doesn't really come into it. thing is the company i contract to supply the van and tools, but not fuel. i get a certain amount of work each day, how i manage my day is up to me.

Ben Jones :

Self employed workers do not have the legal right to take holidays and any such rights are exclusively dealt with under the terms of the contract they have with other parties, such as their employer.

It is therefore important to carefully check the terms which apply to your right to take holidays and see whether they are unconditional and guarantee you holidays as long as the required notice period is given. I would not expect many contracts to give you an unconditional right to take time off and usually it would mention that you are required to give a certain notice period for your employer to consider your request, but allowing you the time of would still depend on them and they would have the final say.

If the right to take time off is unconditional, or only dependent on certain conditions which you have met (e.g. certain notice), then the employer's failure to allow you the time off when you have satisfied all conditions, would potentially amount to breach of contract on their part.

JACUSTOMER-54vab2l3- :

ah ok. that's interesting. when you say all conditions would that mean also providing they have enough engineers to meet their contract obligations?

Ben Jones :

yes if that is a condition then it would allow them to refuse the leave request if they do not have enough engineers to cover you

JACUSTOMER-54vab2l3- :

even though i essentially sub contract to them via my agency?

JACUSTOMER-54vab2l3- :

i mean how many contracts can i have!!!!!! with them, the agency and the umbrella company!

Ben Jones :

that is entirely possible, but in the end you will be bound by the terms of these contracts so will have to adhere to these when you try and take annual leave

JACUSTOMER-54vab2l3- :

well then basically i don't have a leg to stand on as they can say not enough engineers on site at any time they want to!

Ben Jones :

that could be the case but as mentioned as a self employed person you do not have the legal right to take holidays anyway - this right only applies to employees. Also even with employees the employer has the right to reject a request for annual leave as long as they give sufficient notice - this is a right under the Working Time Regulations, which means that even employees are not guaranteed holidays at the time they want tp take them

JACUSTOMER-54vab2l3- :

also they have taken to to threatening contractors with fines ranging from £50 upwards if certain things aren't done, now this i know is not in the contract, they even fine engineers for being sick!

Ben Jones :

that is a separate issue but if these fines are not mentioned in the contract and have not been agreed between the parties, applying them will also amount to breach of contract

JACUSTOMER-54vab2l3- :

really, does it, that's interesting! i for one would certainly NEVER agree to anything like that. they seem to act with impunity throughout

JACUSTOMER-54vab2l3- :

so, therefore if applying these fines that re not in the contract would in essence make the whole contract void?

Ben Jones :

not every breach would make the contract void, only serious breaches would result in that. How serious this breach is would be for the courts to determine

JACUSTOMER-54vab2l3- :

but surely applying these fines willy nilly as they see fit is a serious breach of contract?

Ben Jones :

yes it potentially will be but that is not for you, the employer, or me to decide - only a court can say if it was serious enough. there is nothing stopping you from claiming this though, if the employer does not agree then it would be for them to challenge it and show that it was not

JACUSTOMER-54vab2l3- :

just looked through the "contract of services" document i received and there is no mention of A/L in there or any notice to be given

Ben Jones :

in that case it would be for you and the employer to negotiate these and it would come down to whatever suits both parties

JACUSTOMER-54vab2l3- :

and this is where we come to my initial complaint re: their refusal to let me take A/L to meet my access arrangements for my son!

JACUSTOMER-54vab2l3- :

so basically as there are no conditions in the document relating to A/L it must be null and void and they have to accept my ample notice. at the end of the day it is not my problem if they don't have enough engineers to meet their obligations?

Ben Jones :

that is unfortunately one of the pitfalls of being self employed - no right to annual leave under law and this right is only determined by what is in your contract, or in the absence of anything in there - it would be down for the employer and you to agree on the arrangements

No conditions on A/L certainly would not make the contract null and void, it just means that the arrangements in relation to this would have to be agreed between you and the employer

Ben Jones :

you just cannot demand that you take annual leave as you do not have the right to do so under law

JACUSTOMER-54vab2l3- :

forgive my stupidity but surely if there is nothing written in about A/L sick leave etc then i cant be an employee which seems to be the way they treat us with threats of warnings, written warnings, final warnings etc. so surely i just give decent notice?

Ben Jones :

your employment status is not determined by these factors. It is perfectly possible to be issued with warnings as a self employed worker and that would not make you an employee

Ben Jones :

and even if you were an employee and had made a request for annual leave, the employer can reject that by giving you certain notice (it has to be at least as long as the holidays to be taken, so if you want to take 5 days leave then they can legally reject your request if they have not accepted it yet and have told you of their decision at least 5 days before you were due to take it)

Ben Jones :

Has your original query been answered or do you need me to clarify anything?

JACUSTOMER-54vab2l3- :

too be honest i haven't seen anything i learned elsewhere was hoping for a bit more.

Ben Jones :

The answer you would have wanted me to give you is not necessarily going to be the answer that reflects the reality of the situation I'm afraid and unfortunately there is little I can do about that .

JACUSTOMER-54vab2l3- :

ok, well as I said haven't seen anything in your replies I haven't seen elsewhere,. thank you for your time

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