Employment

Employment is a key feature of most people’s lives. It is a very complex area of law and it is important to know your rights and responsibilities in the workplace. Some rights depend on whether you are an employee, an agency worker or self-employed, to find out more see the section Employees, Agency workers and Self-employed below.

Here employment advice issues are the third largest area of our work. All our Advisers are trained in employment law, and we also have employment specialists on hand to help you.

For help on employment issues, you can request advice.

Employees, Agency workers and Self-employed

Your rights in work depend on your employment status i.e. whether you are an employee, a worker, an agency worker or self-employed. It is not always obvious which of these you are. For example, although your contract may refer to you as an employee you may not be an employee, and equally your contract may say you are self-employed when in fact you are an employee! The situation is further complicated by the so-called zero hours contracts.

Employees

Most working people are employees and work under a contract of service or apprenticeship (whether or not that contract is in writing).

The four essential requirements for a worker to be an employee are:

  • Payment (wages or salary) paid to you for the work done;
  • Personal Performance – you carry out the work yourself and have very limited or no right to bring in someone else to do the work;
  • Control – the employer tells you what to do and when to do it, i.e. s/he controls the work that you do;
  • Mutual Obligation – your employer is obliged to provide you with work, or at least pay a retainer if no work is available, and you are obliged to carry out that work.

However, even if all these factors are present, you may still not be an employee.

Additional factors which suggest that a contract of employment exists are:

  • The purpose and intention of the employer and you when you were engaged;
  • The method of payment – you receive regular pay of the same basic amount (and overtime if applicable);
  • Whether you are integrated into the organisation, i.e. the work you do is an integral part of the business;
  • Whether you work exclusively for one organisation (this does not exclude you having two separate part-time jobs);
  • Whether you work fixed hours doing the same work and you are not free to pick and chose what work you do;
  • If your employer provides you with the majority, if not all, the tools you need to do the work;
  • If you work at the employers premises;
  • If there are terms in your contract such as sick pay, eligibility for a works pension scheme, disciplinary and grievance procedures.

Find out more about your rights as an employee.

If you are unsure about whether you are employee, an agency worker or self-employed or want to know more about your rights as an employee, get advice.

Agency Workers

Most agency workers are ‘workers’ not employees.

You are likely to be a worker if:

  • Your contract says that the agency does not guarantee that they will find you work;
  • You can decide whether or not to accept or refuse work;
  • You undertake work for a business or businesses through the agency;
  • The employment agency pays your wages and deducts tax and National Insurance;
  • The employment agency pays you when you are on holiday or pays you in lieu of accrued holiday at the end of your contract;
  • You can leave the employment agency or a particular assignment giving little or no notice;
  • The end-user can terminate an assignment giving little or no notice;
  • You work on a variety of assignments through the year for different companies;
  • Your employer only offers work as it is available, and you are hired to complete a task rather than to attend between set hours;
  • You can send someone else to do the work in your place if you want;
  • You provide your own tools and equipment.

Find out more information about your rights at work as an agency worker.

If you want to know about your rights, and whether you are an agency worker, employee or self-employed you can request advice.

Self-Employed

You will be self-employed if you work for yourself, you have control over what work you do and when do it, or you have a contract for services rather than a contract of service.

If you are unsure about whether you are employed or self-employed, you can request advice.

If you would like more information about what’s involved in being self-employed, see here.

Contracts

When you agree to work for an employer in return for pay, you have a contract of employment. The contract of employment, whether or not it is in writing, gives both you and your employer certain rights and responsibilities. For example – your employer has the right to give you reasonable instructions and for you to do the work in return for your pay.

Within two months of you starting work, your employer does have to give you a written statement containing certain terms and conditions, including:

  • Your name and your employer’s name.
  • The date you started work.
  • The amount of pay and how often you will be paid.
  • The hours of work.
  • Your holiday entitlement, including how many days off you are entitled to and what your holiday pay will be, if any.
  • How much warning (notice) you are entitled to if you are dismissed and how much warning you must give the employer if you want to leave the job.
  • The title of the job.
  • Where the job is based, including whether you will have to work in more than one location.
  • What the disciplinary, dismissal and grievance procedures are in the workplace.
  • What sick pay you are entitled to.
  • Whether you can join the employer’s occupational pension scheme, if there is one.

This information may not be in a single document, for example some information may be in a staff handbook.

Where stated or not, your contract of employment includes all your statutory rights. It may also include additional specific contractual rights. Contractual rights can offer you more than your basic legal rights. Any clause in the contract that seeks to give you less than your statutory rights is invalid and unenforceable.

Always keep copies of any documents your employer gives you and make a record of any verbal agreements you reach with your employer.

Zero Hours Contracts

Zero Hours Contracts are contracts where the employee is expected to be available for work when required but the contract does not specify how many hours the person is required to work. Zero hours contracts are lawful. Arguably people on zero hours have the same rights as other employees but it can be difficult to exercise these rights. If you have a zero hours contract and want advice, our team  can help you – request advice now.

See more information about Contracts of Employment.

Pay and Entitlements

The law says that as an employee you have a number of statutory rights. You may also have additional rights as set out in your contract of employment.

If you work part-time you have the same rights (pro-rata) as a comparable fulltime employee.

If you are on a fixed-term contract you have the same rights as a comparable permanent employee.

Young people aged under 18yrs have special rights that protect them in employment.

If the organisation you work for is taken over or sold to another company, you may have rights under the Transfer of Undertakings (Protection of Employment) Regulations, often referred to as TUPE. These regulations are very complicated. If you find yourself in this situation, get advice.

Pay

As soon as your start work as an employee you are entitled to be paid and to receive an itemised pay slip that shows your gross pay (pay before deductions), how much money has been deducted for tax, national insurance and any other deductions and your net pay (what you take home after deductions).

Most workers aged over 16yrs are entitled to the national minimum wage from the day they start work.

Agricultural Workers

There are special rules about wages for agricultural workers. If you are an agricultural worker you can find out more at www.gov.uk, or for agricultural workers in Scotland at www.scotland.gov.uk. Or you can call the Pay and Work Rights helpline on 0800 917 2368.

Deductions from Pay

Your employer can only make certain deductions from your pay. All other deductions, including failing to pay you correctly or at all, will be illegal.  Examples of lawful deductions include:

  • Tax and National Insurance.
  • Student Loan.
  • An attachment of earnings ordered by a court.
  • A deduction that is explicitly set out in your contract of employment.
  • A deduction agreed with you in advance.
  • Other ‘industry specific deductions’.

Holiday Pay

The right to paid holiday accrues from the day you start working for your employer. Full-time employees are entitled to at least 28 days a year. Part-time employees are entitled to a pro rata amount.

Health & Safety

Health & Safety law gives you the right to work a maximum 48-hour working week, the right to weekly and daily rest breaks and much more.

Rights in connection with Maternity, Childbirth, Adoption and Childcare

Parents and prospective parents have a number of rights including:

  • The right to paid time off for antenatal care– see Time off work.
  • The right to paid maternity leave.
  • The right to paid paternity leave.
  • The right to ask for flexible working to care for children or adult dependents.
  • The right to paid adoption leave.
  • The right to take unpaid parental leave for both men and women (if you have worked for the employer for one year) and the right to reasonable time off to look after dependants in an emergency (applies from the day of your employment) – see Time off work.

Other Rights

As soon as you start working for your employer you have the right to time off for trade union duties and activities. The employer does not have to pay you for this time.

If you are 16-17yrs and you have not achieved a certain standard of education or training, you are entitled to reasonable time off for study or training. This time off should be paid at your normal hourly rate.

For assistance on pay and entitlements or any other employment issue, you can request advice.

Redundancy and Unfair Dismissal

Redundancy

Redundancy is an all too common problem in the current economic climate. There are a number of situations where making redundancies is the only option for an employer. These include when:

  • The business goes bust;
  • There is a downturn in the business so fewer staff are needed;
  • The business changes its services or products and your skills are no longer required;
  • The business or the work you do moves elsewhere;
  • When the business introduces new technology or re-organises the way it works making your job unnecessary.

Where there is a genuine need for some redundancies, (e.g. the company is downsizing), your employer should use a process which is fair. They must base their decisions on who should be made redundant on evidence such as attendance, disciplinary and / or sickness records, or on skills and experience needed going forward. If an employer does not use a fair selection process the redundancy may constitute unfair dismissal.

Your employer should consult you if s/he is thinking of making you redundant. If s/he is planning to make more than 20 people redundant he must consult any recognised trade union or, if there is no recognised trade union, s/he should consult employee representatives before issuing notices of redundancy.

Suitable alternative Employment

If your employer intends to make you redundant, s/he must consider whether there are other jobs available that you could do. If there is a suitable alternative job s/he should offer it to you rather than making you redundant. Failure to offer suitable alternative employment that is available makes your redundancy an unfair dismissal.

Whether an alternative job is suitable will depend on:

  • The sort of job it is.
  • The pay you will get.
  • The hours you’ll have to work.
  • Where the job is located.
  • Your skills, abilities and personal circumstances.

Any offer of alternative employment should give you enough details about the job for you to make a decision and the offer must be made before your current job ends.

Beware – if you refuse an offer of suitable alternative employment without good reasons you may lose any right you have to redundancy pay.

Notice of Redundancy

If you are being dismissed by way of redundancy, the law says you have the right to notice. You must be given:

  • One week’s notice if you’ve been employed for at least one month but less than two years.
  • If you’ve been employed for at least two years, one week for every complete year of service up to a maximum of 12 weeks.

You must be paid throughout your notice period. Your contract of employment may give you the right to a longer notice period.

If you will have worked for your employer for at least 2 years by the time your notice period ends you are entitled to time off to look for work. There are no rules about how much time off you can have but your employer must pay you for up to 40% of one of your normal working weeks.

Note: merchant seamen, share fishermen, members of the Armed Forces and Police service employees are not entitled to any paid time off to look for alternative work.

Redundancy Pay

If you have worked for your employer for at least 2 years since the age of 16yrs, the law says that you are entitled to statutory redundancy pay. You can calculate your statutory redundancy pay here.

Your contract of employment may give you the right to a more than the statutory redundancy pay.

If your employer refuses to pay your redundancy pay, or s/he has gone out of business, or for any other advice about redundancy, request advice.

Unfair Dismissal

If you are dismissed by your employer your dismissal may be fair or unfair depending on the circumstances. Some employees can never claim unfair dismissal. They are:

  • People who are not employees (see ‘Employees, Agency workers and Self-employed’ section above)*.
  • Police officers.
  • Members of the Armed Forces.
  • Share fishermen.
  • People who work outside Great Britain.
  • Registered dock workers.

To claim compensation for unfair dismissal, you must have worked for your employer for at least one year if you started working for your employer before 6 April 2012, or two years if you started on or after 6 April 2012, unless the reason for your dismissal is one that is automatically unfair.

* Note: There are rare circumstances when agency workers can claim unfair dismissal. To find out if you may be able to claim, you can get advice.

Beware – if you want to make a claim for unfair dismissal you must do so within 3 months of the date of your dismissal.

Employers can fairly dismiss employees for a number of reasons including:

  • Poor time-keeping or attendance.
  • Lack of ability to do the job.
  • Poor conduct.
  • Criminal activity.

You can work out if you have been fairly or unfairly dismissed.

Your employer should follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. If s/he doesn’t and you win your case for unfair dismissal, your employer may be ordered to pay you more compensation if s/he cannot show good reason for not following the Code.

Find out more about The Code of Practice.

If you think you have been unfairly dismissed get advice immediately.

Discrimination

Discrimination occurs when you are treated differently from other people because of a personal characteristic such as your age, race, gender, disability, religion or sexual orientation. You may also be discriminated against if you are treated differently because of a connection with someone, e.g. a partner, child or you are a carer of someone with a personal characteristic (such as their age, race, gender, disability, religion or sexual orientation). This is called discrimination by association.

Discrimination can be either direct or indirect.

Direct discrimination is when you are treated less favourably on the grounds of a personal characteristic.

Indirect discrimination occurs when there is a requirement or condition, e.g. of employment, which, although it applies to all employees or potential employees, a smaller number or no members of a particular group can meet the requirement or condition.

See also the Harassment section below.

Discrimination in employment can occur when:

  • You are in work (including access to training or promotion);
  • You apply for a job;
  • If you are an agency worker;
  • You need a reference from your employer.

If you think you are being discriminated against at work, keep a diary of any incidents, including:

  • Time and date;
  • Details of the incident;
  • Who was involved, and
  • Any witnesses.

Report the matter to your manager, a senior manager or the personnel department or raise a grievance. Our team will also be able to help you – get advice.

Age Discrimination at Work

Whatever your age, you could be discriminated against. So for example, if a job advert says you must have 10 years’ experience this could discriminate against younger people. Alternatively if it said ‘people over 50 need not apply’, this would discriminate against older people.

There are some circumstances where your employer can treat you differently because of your age. These include:

  • Where there is age-related legal restriction, for example the law forbids people under 18yrs to serve alcohol;
  • Paying the National Minimum Wage, which is age-related;
  • Paying statutory redundancy pay, which is age-related;
  • Where there is a genuine occupational qualification, for example a theatre production may require you person to play the part of a teenager.

Note: Your employer cannot make you retire just because you have reached a certain age, although they may be able to do so if there are, for example, very strong health and safety grounds

See more information about age discrimination.

If you think you may have been discriminated against or harassed on the grounds of your age or want more information our team at NESCAB will be able to advise you – get advice.

Disability discrimination at work

If you are disabled, your employer cannot treat you less favourably because of something connected to your disability. For example insisting you do night shifts when you require treatment, e.g. dialysis, at night.

Your employer should make reasonable adjustments to your work place to enable you to work. Such adjustments include:

  • Making physical adjustments to your work place;
  • Providing information in accessible formats;
  • Supplying special equipment to enable you to do your job;
  • Altering your hours of work.

If you are disabled and looking for a job, or you are in work and need changes to be made to enable you to work, you may be able to get help from Access to Work or Disability Rights UK.

If you think you may have been discriminated against or harassed on the grounds of disability, or want more information, our team will be able to advise you – get advice.

Discrimination because of Pregnancy or on Maternity Leave

Your employer is not allowed to discriminate against  you, e.g. demote, discipline or dismiss you, because you are pregnant or on maternity leave. For example, it would be pregnancy and maternity leave discrimination if you were dismissed or disciplined:

  • Because you have asked to take time off to attend ante-natal classes;
  • Because you are unable to do your job during your pregnancy for health & safety reasons;
  • Because you asked to take maternity leave or you are on maternity leave.

Get more information about discrimination on the grounds of pregnancy or maternity leave.

If you think you may have been discriminated against on the grounds of pregnancy or maternity leave, or you want more information our team  will be able to advise you – request advice.

Discrimination on the grounds of Race, Colour or Ethnicity

It is against the law for an employer to discriminate against you on the grounds of:

  • Your race;
  • Your colour;
  • Your nationality;
  • Your country of origin;
  • Your ethnic origins.

Note: ‘Ethnic origins’ includes Jewish people, Romany gypsies, members of the Irish traveller community and Sikh people. It does not include Muslims, however if you are treated unfairly at work because of your faith or religious belief – see here (PDF).

Get more information about racial discrimination by your employer (PDF).

If you think you may have been discriminated against or harassed on the grounds of your race or religion, or you want more information our team will be able to advise you can request advice.

Discrimination on the grounds of sex or sexual orientation

Whether you are male or female and you are:

  • Applying for a job;
  • Employed;
  • An apprentice or on work experience;
  • A contract or agency worker, or
  • Self-employed.

it is against the law for you to be treated less favourably because of your sex (gender), or your sexual orientation.

Less favourable treatment includes:

  • Being paid less than your counterpart of the opposite sex, or sexual orientation, for doing the same or an equivalent job.
  • Unfair access to training opportunities or other benefits.
  • Unfair selection for redundancy.
  • Unfair treatment when applying for promotion.
  • Not allowing you to work flexibly to care for a child or relative.

It is lawful for an employer to discriminate in certain circumstances, for example, where there is a genuine occupational requirement (e.g. a female giving personal care to a female).

Special rights and protections for pregnant women is also lawful.

Sexual Harassment

See Harassment below but there is also more information about sex discrimination and sexual harassment (PDF).

If you think you may have been discriminated against at work on the grounds of your sex or sexual orientation or you want more information our team  will be able to advise you – request advice.

Harassment

Harassment is unwanted behaviour which you find offensive or which makes you feel intimidated or humiliated. It is unlawful if it is in relation to your:

  • Age.
  • Disability.
  • Gender reassignment.
  • Race.
  • Religion or belief.
  • Sex (including pregnancy).
  • Sexual orientation.

The unwanted behaviour could be:

  • Spoken or written words or abuse.
  • Offensive emails, ‘tweets’ or comments on social networking sites.
  • Physical gestures.
  • Facial expressions.
  • Jokes.
  • Images, posters and graffiti.

If you think you may have been harassed at work or you want more information, our team will be able to advise you – request advice.

Employment Tribunals

Employment Tribunals are the Courts that hear cases relating to problems at work, for example claims against your employer for:

  • Unfair dismissal.
  • Discrimination.
  • Harassment.
  • Unfair selection for redundancy.
  • Unauthorised deductions from earnings.

Time Limits

There are very strict time limits within which you must make a claim to an Employment Tribunal. This is usually 3 months from the last date you worked but it can vary. If you have been dismissed get advice immediately. Our team, which includes employment specialists, can help you.

Mandatory Pre-Claim Conciliation

As of 6th April 2014 if you want to take a claim to an Employment Tribunal, you must first try to resolve the matter through the free ACAS pre-claim conciliation service Or call the ACAS Helpline on 08457 47 47 47.

Fees

If you want advice about taking a claim to an Employment Tribunal our team, which includes employment specialists, can help you – request advice.

Note –  The tribunal fees changed in July 2017, and if you have paid fees in recent years you may be able to claim them back. For more info see here or contact us.


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