Rights at Work
Who has legal rights at work?
Most people are entitled to the statutory rights listed in this section although in many cases qualifying conditions must be fulfilled before a right may be claimed. Some rights apply to all employees as soon as they start work; others depend on factors such as length of service, continuity of employment and activities in addition to the job (eg union work). For certain rights, various groups of people are excluded. Most rights apply only to employees but some apply to wider groups of workers. Always check detailed information on qualifying conditions using the links provided with each right.
Employers and employees are free to agree better terms than those required by legislation as part of their contract of employment. A contract of employment is an agreement entered into by an employer and an employee under which they have certain mutual obligations.
Employers must give employees a written statement of the main particulars of employment within two months of the beginning of the employment. It should include, among other things, details of pay, hours, holidays, notice period and an additional note on disciplinary and grievance procedures.
What happens if there is a dispute about rights at work?
If employers and employees have a dispute about rights at work they have the following options:-
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Resolve the dispute. Employees should always try to resolve a problem or dispute with their manager or employer first. This should be through the organisation's own grievance procedure. If an employee wishes to use a grievance as the basis of a complaint to an employment tribunal they must first inform the employer of their grievance in writing. Both sides can also go to ACAS for advice, either through the helpline or a conciliator
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An employee can make a complaint to an employment tribunal if he or she believes an employment right has been denied or infringed. In most cases people who have been treated detrimentally for exercising their rights can also complain to a tribunal. Complaints normally must be made within three months of the date of the alleged infringement - although there are exceptions. For nearly all types of complaint, once an application is received an ACAS conciliator will contact both parties to see if a settlement can be reached before the case reaches a hearing. From 1st October the help the conciliator can offer will be limited to a fixed period in most cases, according to the type of claim. The period for claims about wages, redundancy payments and similar contractual matters will be seven weeks, and in more complex cases such as claims of unfair dismissal it will be thirteen weeks. Conciliation will only be available in exceptional circumstances once the fixed period has ended. However there will be no limit in cases where some form of discrimination has been alleged, or in public interest disclosure claims.
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ACAS Arbitration Scheme. For cases of alleged unfair dismissal and complaints under the right to request flexible working only, both parties can choose to have their case heard by an independent arbitrator appointed by ACAS. The hearing is private, informal, non-legalistic, quick and confidential and the arbitrator's decision final. The remedies are the same as through an employment tribunal.
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A tribunal has various remedies and awards it can make, depending on the type of case. For example, if the tribunal decides an employee has been unfairly dismissed, the remedy could be re-instatement, re-engagement or monetary compensation, depending on the circumstances. Costs can also be awarded. A tribunal hearing is public.
Dismissals
When is a dismissal fair?
Dismissal is normally fair only if the employer can show that it is for one of the following reasons:
- a reason related to the employee's conduct
- a reason related to the employee's capability or qualifications for the job
- because the employee was redundant
- because a statutory duty or restriction prohibited the employment being continued
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some other substantial reason of a kind which justifies the dismissal and that the employer acted reasonably in treating that reason as sufficient for dismissal.
What protection do employees have against unfair dismissal?
Employees have the right not to be unfairly dismissed. In most circumstances they must have at least one year's continuous service before they can make a complaint to an employment tribunal. However, there is no length of service requirement in relation to 'automatically unfair grounds' (see below). Also, the requirement is reduced to one month for employees claiming to have been dismissed on medical grounds as a consequence of certain health and safety requirements that should have led to suspension with pay rather than to dismissal.
A complaint of unfair dismissal must be received by an employment tribunal within three months of the effective date of termination of the employment (usually the date of leaving the job) unless the tribunal considers this was not reasonably practicable.
If both the employer and employee agree, instead of going to an employment tribunal, the case may be heard by an arbitrator under the Acas Arbitration Scheme. For further details, see section the Individuals at work.
If a tribunal establishes that a dismissal has taken place it is normally for the employer to show that it was for a fair reason and that they have, as a minimum, followed the statutory disciplinary procedures. In such cases the tribunal must then decide whether, in the circumstances, the employer acted reasonably in treating that reason as sufficient for dismissal.
When is a dismissal 'automatically unfair'?
Dismissals are classed as 'automatically unfair' - regardless of the reasonableness of an employer's action - if an employee is exercising specific rights to do with:
- pregnancy - including all reasons relating to maternity
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family reasons - including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
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representation - including acting as an employee representative and trade union membership grounds and union recognition
- part-time and fixed-term employees
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discrimination - including protection against discrimination on the grounds of sex, race, disability, sexual orientation and religion or belief
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pay and working hours - including the Working Time Regulations, annual leave and the National Minimum Wage
How much notice of termination must be given?
Both the employer and employee are normally entitled to a minimum period of notice of termination of employment. After one month's employment, an employee must give at least one week's notice; this minimum is unaffected by longer service. An employer must give an employee:
- at least one week's notice after one month's employment
- two weeks after two years
- three weeks after three years and so on up to 12 weeks after 12 years or more.
However, the employer or the employee will be entitled to a longer period of notice than the statutory minimum if this is provided for in the contract of employment.
Most employees, subject to certain conditions, are entitled to certain payments during the statutory notice period. Employees can waive their right to notice or to payment in lieu of notice. Employers can also waive their own right to notice.
Can an employee be dismissed for whistle-blowing?
Workers who 'blow the whistle' on wrongdoing in the workplace can complain to an employment tribunal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) will be unfair if it is wholly or mainly for making a protected disclosure.
Does an employer have to tell an employee why they are being dismissed?
Yes. Employees who are dismissed and have completed at least one year's continuous employment are entitled to receive, on request (orally or in writing), a written statement of reasons for dismissal within 14 days. An employee dismissed during:
- her pregnancy or her ordinary or additional maternity leave
- his or her ordinary or additional adoption leave
is entitled to a written statement of the reasons regardless of length of service and regardless of whether or not the request was made.
Can an employee claim for breach of contract?
Yes. Employees who suffer a measurable financial loss because their employer has not followed the agreed terms of their contract can seek damages by making a breach of contract claim. Normally this must be made to a county or other civil court but if the employment has ended, it may be made to an employment tribunal.
Employers who suffer a measurable financial loss because an employee has departed from the agreed terms of the contract of employment can also seek damages in the same way - as a breach of contract claim or, if the employee has already claimed breach of contract to the tribunal, as a counter-claim
Discipline and Grievances
What information must an employer give employees about disciplinary and grievance procedures?
Most employees are entitled by law to a written statement setting out the main particulars of their employment within two months. As well as information on pay, hours, holiday entitlement and pensions the statement must cover a note giving details of the employer's disciplinary and grievance procedures. The note must:
- cover any disciplinary rules which apply to the employee
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specify the person to whom the employee can apply and the manner in which an application should be made if the employee is dissatisfied with any disciplinary decision relating to them or for the purpose of seeking redress of any grievance relating to their employment
- cover any further steps which follow from making any such application.
What is the statutory disciplinary procedure?
If an employer is contemplating dismissal - or action short of dismissal such as loss of pay or seniority - they must follow a three-step disciplinary procedure. This statutory procedure involves:
- a statement in writing of what it is the employee is alleged to have done
- a meeting to discuss the situation, and
- the right of appeal
If an employer does not follow the minimum procedure then an employment tribunal may judge the dismissal 'automatically unfair'. Compensation will increase or decrease - by between 10-50% - depending on whether the employer or employee failed to adhere to the new law.
What is the statutory grievance procedure?
The procedure has three steps:
- step one: the employee informs the employer of the grievance in writing
- step two: meeting to discuss the grievance and
- step three: hold an appeal, if requested
If an employee wishes to use a grievance as the basis of a complaint to an employment tribunal they must first complete step 1 of the statutory grievance procedure. Employment tribunals may adjust any award of compensation by between 10 and 50 per cent for failure by either party to follow relevant steps of the statutory procedure.
Do workers have the right be accompanied at a disciplinary or grievance hearing?
Yes. Workers are entitled to be accompanied at certain disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, within specified limits, if their chosen companion is unavailable at the time the employer proposes. Workers have the right to take time off during working hours to accompany fellow workers employed by the same employer.
Redundancy
What is Redundancy pay?
Employees have the right to a lump-sum 'redundancy payment' if they are dismissed because of redundancy. The amount is related to the employee's age, length of continuous service with the employer, and weekly pay up to a maximum. The employer must also provide a written statement showing how the payment has been calculated, at or before the time it is paid.
Any dispute about whether a redundancy payment is due, or about its size, can be determined by an employment tribunal. If the employer has cash-flow problems so serious that making the redundancy payment would put the future of the business at serious risk, the Redundancy Payments Service (RPS) can arrange to pay the employee direct from the National Insurance Fund. If the employer is insolvent, the RPS makes the payment and the debt is recovered from the assets of the business.
Unauthorised Deductions from Pay
Are employees protected from unauthorised deductions from their wages?
Yes The law protects individuals from having unauthorised deductions made from their wages, including complete non-payment. This protection applies both to employees and to some self-employed workers.
There are extra protections for individuals in retail work which make it illegal for an employer to deduct more than 10 per cent from the gross amount of any payment of wages (except the final payment on termination of employment) if the deduction is made because of cash shortages or stock deficiencies.
Workers who believe they have suffered an unlawful deduction from wages can make a complaint to an employment tribunal.
When can an employer make deductions from wages?
One of three conditions has to be met for an employer lawfully to make deductions from wages or receive payments from a worker. The deduction or payment must be:
- required or authorised by legislation (for example, income tax or national insurance deductions); or
- authorised by the worker's contract - provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made; or
- consented to by the worker in writing before it is made.
There are exemptions from these conditions which allow an employer to recover, for example, an earlier overpayment of wages or expenses to a worker.
Breach of Contract
Can an employee claim for breach of contract?
Yes. Employees who suffer a measurable financial loss because their employer has not followed the agreed terms of their contract can seek damages by making a breach of contract claim. Normally this must be made to a county or other civil court but if the employment has ended, it may be made to an employment tribunal.
Employers who suffer a measurable financial loss because an employee has departed from the agreed terms of the contract of employment can also seek damages in the same way - as a breach of contract claim or, if the employee has already claimed breach of contract to the tribunal, as a counter-claim.
Holiday Pay
How much paid holiday must a worker get?
Most workers - whether part-time or full-time - are entitled by law to four weeks' paid annual leave. Employees may have additional entitlement as part of their contract of employment.
A week's leave should allow workers to be away from work for a week - ie it should be the same amount of time as the working week. If a worker does a five-day week, he or she is entitled to 20 days leave. If he or she does a three-day week, the entitlement is 12 days leave.
Workers must give the employer notice that they want to take leave. Employers can set the times that workers take their leave, for example for a Christmas shutdown. If a worker's employment ends, he or she has a right to be paid for the leave time due and not taken.
Do employees have to work on Bank Holidays?
There is no statutory right to have bank holidays off as paid leave. They may be part of the four weeks leave - some employment contracts deal with bank holidays separately.
Maternity
Who qualifies for maternity leave?
To qualify for maternity leave, a woman must tell her employer by the end of the 15th week before the expected week of childbirth:
- that she is pregnant
- the expected week of childbirth, by means of a medical certificate if requested
- the date she intends to start maternity leave. This can normally be any date which is no earlier than the beginning of the 11th week before the expected week of childbirth up to the birth
An employer must then write to the employee, within 28 days of her notification, setting out her return date. The employee can change this date if she gives her employer 28 days' notice.
An employee is entitled to a period of 26 weeks ordinary maternity leave, regardless of her length of service.
What is statutory maternity pay?
A woman is entitled to Statutory Maternity Pay (SMP) if she has been employed by her employer for a continuous period of at least 26 weeks ending with the 15th week before the expected week of childbirth, and has average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. SMP can be paid for up to 26 weeks; it is payable by the employer but partly (or, for small firms wholly) reimbursed by the state.
From April 2006 the standard rate of SMP is £108.85 a week (or 90% of the woman's average weekly earnings if this is less than £108.85 a week). For the first six weeks the rate is 90% of average weekly earnings with no maximum limit. The standard rate of SMP is reviewed every April.
What rights does a woman have while on maternity leave?
During the 26 weeks maternity leave, she is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary). At the end of it, she has the right to return to her original job. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay.
What is maternity suspension?
Employers must take account of health and safety risks to new and expectant mothers when assessing risks in work activity. If the risk cannot be avoided, the employer must take steps to remove the risk or offer suitable alternative work (with no less favourable terms and conditions); if no suitable alternative work is available, the employer must suspend the mother on full pay for as long as necessary to protect her health and safety or that of her baby.
What is parental leave and who qualifies?
Employees who have completed one year's service with their employer are entitled to 13 weeks' unpaid parental leave for each child born or adopted. The leave can start once the child is born or placed for adoption with the employee or as soon as the employee has completed a year's service, whichever is later. It may be taken at any time up to the child's fifth birthday (or until five years after placement in the case of adoption). Parents of disabled children can take 18 weeks up to the child's 18th birthday.
What rights do employees have while on parental leave?
Employees remain employed while on parental leave and some terms of their contract, such as contractual notice and redundancy terms, still apply. At the end of parental leave they have the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status, terms and conditions as the old job. Where leave is taken for a period of four weeks or less, the employee is entitled to go back to the same job.
Wherever possible, employers and employees should make their own agreement about how parental leave will work in a particular workplace. Such agreements can improve upon the key elements set out above but they may not offer less. Employees can complain to an employment tribunal if their employer prevents or attempts to prevent them from taking parental leave. They are also protected from dismissal or detrimental treatment for taking or seeking to take it.
What is paternity leave and who qualifies?
Employees who:
- have or expect to have responsibility for the child's upbringing
- are the biological father of the child or the mother's husband or partner and
- have worked continuously for their employer for 26 weeks ending with the 15th week before the baby is due or the end of the week in which the child's adopter is notified of being matched with the child
can choose to take either one week or two consecutive weeks' paid paternity leave (not odd days).
When must paternity leave be taken?
Paternity leave must be completed:
- within 56 days of the actual date of birth of the child, or
- if the child is born early, within the period from the actual date of birth up to 56 days after the first day of the week in which the birth was expected.
Employees have the right to return to the same job after paternity leave. Most employees are entitled to Statutory Paternity Pay (SPP) from their employers
Who is entitled to statutory paternity pay?
Most employees who are entitled to paternity leave (see section on Parents at work) are also entitled to Statutory Paternity Pay (SPP) from their employers. SPP is paid by employers for either one or two consecutive weeks, whichever the employer chooses. The rate of SPP is the same as the standard rate of Statutory Maternity Pay - £108.85 a week or 90% of average earnings if this is less than £108.85.
Equality and Discrimination
Are men and women entitled to equal pay?
Yes. Employers must give men and women equal treatment in the terms and conditions of their employment contract if they are employed on:
- 'like work' - work that is the same or broadly similar
- work rated as equivalent under a job evaluation study, or
- work found to be of equal value.
A woman is employed on 'like work' with a man if her work is of the same or a broadly similar nature. It is for the employer to show that there is a genuine reason for any difference in this 'like work', which is not based on the sex of an individual.
Individuals may complain to an employment tribunal under the Equal Pay Act 1970 up to six months after leaving the employment to which their claim relates. Normally, they may claim arrears of remuneration (which includes sick pay, holiday pay, bonuses, overtime etc as well as 'pay') for a period of up to six years (five years in Scotland) before the date of their tribunal application.
Are employees protected from sex discrimination at work?
Under the Sex Discrimination Act 1975 (as amended), employers should not discriminate on grounds of sex, marriage or because someone intends to undergo, is undergoing or has undergone gender reassignment.
What does sex discrimination cover?
Sex discrimination covers all aspects of employment - from recruitment to pay, and training to the termination of a contract. It also includes applying requirements or conditions which, though applied equally to all, have a disproportionately detrimental effect on one sex or on married people and which cannot be shown to be justifiable (for instance to be job-related).
There are limited exceptions: the Act permits employers, under certain conditions, to train employees of one sex in order to fit them for particular work in which their sex has recently been under-represented; they may also encourage the under-represented sex to take up opportunities to do that work.
Are employees protected from race discrimination?
Yes. The Race Relations Act 1976 (as amended) makes it illegal to treat a person less favourably than others on racial grounds.
Race discrimination covers all aspects of employment - from recruitment to pay, and training to the termination of a contract.
What does race discrimination cover?
Race discrimination covers four areas:
- direct discrimination - treating someone less favourably on racial grounds
- indirect discrimination - applying practices that might favour one racial group over another
- harassment - unwanted conduct that violates a person's dignity and creates a hostile or degrading environment
- victimisation - unfair treatment of an employee who has made a complaint about racial discrimination.
Can jobs ever be restricted to certain ethnic or national groups?
Yes. A genuine occupational requirement is a valid reason for restricting a job to people of a particular race or ethnic or national origin. A genuine occupational requirement may apply in limited circumstances - for example, to achieve authenticity a theatre company may need black actors to depict certain scenes.
Are disabled people protected from discrimination?
Yes. The Disability Discrimination Act 1995 provides disabled people with protection from discrimination in a range of areas, including in employment and occupation.
Employers:
- must not directly discriminate against a disabled person.
- must not treat a disabled person less favourably for a reason related to his or her disability, unless that treatment can be justified.
- must make reasonable adjustments in the recruitment and employment of disabled people. This can include, for example, adjustments to recruitment and selection procedures, to terms and conditions of employment, to working arrangements and physical changes to the premises or equipment.
What does age discrimination cover?
From 1 October 2006 the Employment Equality (Age) Regulations make it unlawful to discriminate against employees, job seekers and trainees because of their age. The protection covers direct and indirect discrimination, harassment and victimization.
The regulations also:
- remove upper age limits on unfair dismissal and redundancy
- introduce a national default retirement age of 65, making compulsory retirement below 65 unlawful unless objectively justified
- give all employees the right to request to work beyond 65 or any other retirement age set by the company.
