What should she do?

hbk2006

Hi all, I have a question on behalf of my mother-in-law - I hope you can help!

Background Info

She is a home carer who works with no contract (that she is aware of - has been told there is no contract). She gets holiday pay in hours not days as her hours vary every week and she isn't contracted to work any set hours.

My mother-in-law had previously this year asked for two days off for personal reasons (she had already put those two days down on the rota as unavailable so wanted to be sure she would not be called in for cover at the last minute but did state she could come back early if needed for a shift) and was told she could not have them. Due to already stating unavailable, she took the two days off and this caused an atmosphere between her and her boss.

Situation

Before July this year, she spoke with her boss, regarding next years holidays, asking for two weeks in July 2008 and was told that she was not allowed to take July for holidays as it was unfair to the other employees who may want the same time, however my mother-in-law told her boss that July was the only month she could take her summer holidays as her husband is very restricted about when he can take his holidays (she has worked with this employer for 9 years and for the last 3 years she has always taken her holidays in July). The conversation came to an end and nothing was official resolved.

She then went on to book her holidays , and when she told her boss this, she was again told that it was unfair to other employees who may also want this time - so M-I-L asked various co-workers (only 2 employees can go on holiday at one time and there are only about 8 employees) and no one that she spoke to wanted the same two weeks off. Previously my mother-in-law had never been consulted regarding any one else's holidays - normally holidays are just written in the holiday book and nothig is said apart from when M-I-L wants time off.

Also with giving 11 months notice and ample cover for July there are no real reasons to oppose her taking holidays especially as the holiday book is made up to July and there are only 2 sets of holidays in so far (1 employees holidays in March and my M-I-L in July)

Now she has been handed a written warning stating that she wasn't allowed to take July holidays as she refused to cancel them.

Recap

- Employer has enough cover for holidays
- No contract stating holiday entitlement and no written documents stating holidays are worked on a rotational system
- She has given 11 months notice for next years holidays


As far as I can see from various internet sites that she has committed no crime as there is no contract stating holiday entitlement and I believe this does not warrant a written warning as she has not taken the holiday yet therefore not actually done anything wrong yet. Also as she does not work under a contract, stating certain hours must be worked, would she be within her right to state that for the two weeks holiday that she was unavailable to work as opposed to actually taking them as a holiday?

Can you confirm the above information and offer any advice for her that could help her? She will be making an appointment with CAB but is very upset about all this and I would like to offer her some reassurance.

Thanks in advance

Sagaris

Sorry I can't offer any useful advice - but in reply to the original question - get out of there and find another job as soon as possible! To me your MIL seems perfectly reasonable and is doing everything she can to make sure there is adequate cover for when she wants her holiday - I'd tell them where to put the job!
Although I do appreciate it's not always that easy to find other employment - I'd definitely be looking if I were her.
Good luck to her and hope she gets a resolution.

cazziebo

This is my interpretation from what you have told us, and others may have a completely different interpretation.

I think your MIL will be on a zero hours contract which is standard in the homecare industry. The company has no obligation to supply work to the employee but there is an expectation that work will be supplied and also an expectation that the employee will make themselves available.

It doesn't really matter how much notice the employee gives - the employer does not have to authorise the holidays. As such, the employee is wrong to take them if they are not authorised. Therefore the disciplinary procedure could be invoked. July may be a very popular time for holidays and because your MIL has spoken with other carers it doesn't mean there aren't gaps in the planner elsewhere. I have experience with care companies and often the work load increases because they have to cover for council carers' holidays.

The company has a duty of care to supply care where required, so it would be reasonable for them to behave in this way. This may be especially true where the employee has previously benefitted from peak time holidays.

I would strongly advise trying to resolve this amicably - particularly in a small company there will be no benefit from causing ructions. Difficult awkward situation. CAB and ACAS will be able to advise, although remember they will only be given your MIL's side of the story and if it was to go tribunal then the panel might make a different judgement.

DNC70

hbk2006 wrote: »

She is a home carer who works with no contract (that she is aware of - has been told there is no contract).

She will have a contract (basically her agreement to work, and her employer's agreement to pay her for that work have created the contract). The employers do not have to produce a full written copy of it but she is entitled to a written summary after 2 months of employment. She should politely but firmly request a copy of the main terms. If they refuse this is another one to bring up with the CAB.

hbk2006

Thanks for all the advise,

I believe she had asked for a copy of the contract details and was told they do not work under a contract. On the zero contract note, she worked previously as a bank nurse for the NHS and basically every 2 weeks she would give her avaliability and if there were any shift that matched she got work. Technically this job is exactly the same as she only works when she is avalible to work so as far as I can see if she was to turn round and say she didnt need the holidays and then put her avalibility in at nothing for those 2 weeks she would not be obliged to work anything that week if her contract doesnt state that she wok some hours per week.

She is currently looking for other employment just now and I know this will hamper her search and any other advise will help just now as she is going to the CAB tomorrow.

cazziebo

Unless it's very different from other care companies then it is a different agreement from a bank nursing contract. There are no employer liabilities with bank nursing - eg a nursing agency would not authorise holidays for bank nurses. Your MIL will be an employee of the care company I'd think, and therefore has to adhere to the company's code of conduct.

I know I sound as if I'm condoning poor working practices - I'm very definitely not. I think carers do the most valuable job - allowing vulnerable and ill people to remain in their own home - and it's a great shame that there isn't more security and reliability in the profession.

Good luck to your MIL in finding another job - seems such a shame to be leaving this job after 9 years. (but this loyalty will stand her in good stead with prospective employers)

hbk2006

Thanks again for the reply,

It isnt a company as i'm aware as such. The lady she looks after gets partial funding from somewhere and the rest of the money is paid by the lady who they care for. The ladys dad takes care of the payment run and as far as i'm aware of thats it really. The person who gave her the warning and all the discussions isnt really in charge as its the person who cares for her.The person who gave her the written warning is actually on the same level and she just takes care of the rota etc.

Hopefully its all resolved and once again thanks for the help, i'm very grateful!

Conor_3

When you're not working set hours per week, holiday pay for a week is calculated as the average of the previous 12 weeks.