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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46747
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working as a carer for an agency for 13 years and

Resolved Question:

I have been working as a carer for an agency for 13 years and have been classed as self employed, as part of the package with the agency work we have been entitled to 21 days respite/short break care ....they are now saying that they are stopping respite /short break care so we are not allowed to have any holidays ..is this not an infringement of our human rights
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Do you have a contract that says you are entitled to these days?

Customer:

well Ben it was 13 years ago that i joined the agency...and during that time I have had a lot of children. I have 2 at the moment one of which has been placed long term (9years) and the other child we have applied to the court for special guardianship order. So in real terms it is only 1 child we have On Placement. when we joined the agency the 21 days was definately part of the package that they offered us, and has been used in their recruitment advertising

Ben Jones :

And I presume this right has been consistently applied until now?

Customer:

yes thats right

Customer:

the agency are saying that it is the local authority that are asking for this ...that the carers should take the children on holiday with them..we do take 4 holidays a year with our children and normally we use the 21 days to refresh...this is a very stressful job and we need to recharge.

Customer:

i have found a foster carer agreement which states we are entitled to 21 days a year

Ben Jones :

ok let me get my response please

Customer:

ok Ben...where is the info you posted?

Ben Jones :

I have not posted anything yet

Customer:

sorry ..the chat box said you have ...lol

Ben Jones :

ah, I see, no you can ignore that, gremlins in the system hard at work...

Customer:

I was wondering Ben wether there was any infringement of our human rights...it seems that we as self employed carers have hardly any rights

Ben Jones :

As an agency or self employed worker you do not have the legal right to annual leave and this is something that only workers/employees get. So in your circumstances you cannot argue that no holiday provisions are illegal or a breach of your human rights.


 


However, you will have rights under contractual law because you had an agreement where you were specifically (and contractually) entitled to have these days off every year. This was not only specifically defined in your agreement, but it was also consistently applied over the years so in any event it is likely to have become an implied contractual term, even if not written down anywhere.


 


The employer’s attempts to try and change this agreement could now certainly amount to an attempted breach of contract because they are trying to change these without your consent and without having the contractual right to do so.


 


Whilst you can challenge these internally, for example by raising any formal complaints using the defined internal procedures, if the employer proceeds with making the changes your only viable option to take the matter further would be top claim for breach of contract and seek compensation for any losses incurred as a result of these changes. You cannot really force them to give you these days back if they make the changes or to try and prevent them from taking them away and your remedy is really limited to seeking any compensation for losses incurred as a result of their breach. As such the most important thing to do is to try and negotiate with them at this stage before the changes are made, to try and reach a resolution without having to resort to legal action.

Customer:

thanks Ben i will try this approach at the meeting on thurs ...is it ok for me to share this info verbally with my fellow carers

Ben Jones :

You mean our conversation?

Customer:

yes

Ben Jones :

yes of course, you are free to discuss these issues with anyone that is affected by them

Customer:

thank you ...Hopefully there will be a good outcome ..but i wont hold my breath they are a very determined group...but I do find it unrealistic to think that workers should be expected not to have time off.I will take this as the end of our time and if I need anymore advice can i just ask for you

Ben Jones :

Yes you can come back to me any time, just start your question with 'for Ben Jones'. I agree that it appears unfair not to have time off but as mentioned when you are self employed it is between you and the employer to negotiate these terms and you will be bound by the contract that is in place, you simply do not get legal right to demand minimum time off for holidays

Customer:

thanks again

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46747
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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