Section 1(1) of The Employment Rights Act 1996 requires that the employee is given
a written statement of particulars within 2 months of joining the business. The
document(s) must be in writing but they do not have to be in the form of a contract
and signed by both parties. An offer letter sent by the employer to the employee
can be sufficient, provided they detail the following minimum information:
· The name of the employer and employee
· The date the employment commenced
· The salary level
· How the salary will be paid and when (weekly/monthly)
· The hours of work
· Details of holiday and sick pay
· Pension details if appropriate
· Details of notice
· The employee’s job title and normal place of work
· Whether the contract is affected by Collective Agreements under Union Recognition
The Employment Tribunal can make an award of up to 4 weeks pay for non-compliance
with this law, but the employee cannot make this claim as a stand-alone claim at
the Tribunal. It can only be an add-on to other claims.
There are two terms of contract which are written into every person’s contract, whether
they have a written one or not. These are the “Implied Term of Mutual Trust and
Confidence” and the “Implied Term of Health and Safety”.
The implied terms apply to both the employee and the employer: neither party must
take any action to undermine these terms.
The Right not be Unfairly Dismissed
This right only applies to employees who have at least 1 year’s service with the
employer, depending upon the circumstances, if their employment started before 6th April 2012. For employees who commenced emplyement on or after 6th April 2012, the qualifying period is 2 years. In reality this means that an employer can unfairly dismiss an employee
with less than 1 year’s service.
This is because in the past employers’ and employees’ contracts were dealt with like
normal commercial contracts with both parties being bound by the agreed terms. This
led to unfair terms in the contracts which favoured the employer because they generally
had the money and power to offer work.
The Right not to suffer unlawful deduction from wages
You do not need to have a year’s service to make a claim under this heading. If
your employer takes money from your wages or does not pay you what you are entitled
to, then you can make a claim at the Employment Tribunal for unlawful deduction of
wages. The employer can only make a deduction from your salary if they have set
out the circumstances for doing so in writing, and you have agreed to it.
Generally, an employee’s rights to make a deduction must be contained in a contractual
document or written up as a separate agreement. It is common to see clauses that
allow deductions to be made if the employee has acted negligently or lost equipment.
If you are a retail worker, your employer is not permitted to take more than 10%
of your salary in deductions unless the deduction is being made from your final salary.
The employer cannot make a deduction retrospectively unless they have your written
agreement at the time of the deduction. Any claim must be issued at the Employment
Tribunal within 3 months of the date of the last deduction.
The Right to Notice
If the employer dismisses you then provided the dismissal is not for an act of Gross
Misconduct, then you are entitled to notice. Statutory notice is 1 week’s pay for
each full year of service up to a maximum of 12 weeks pay.
You have to work a full month before you are entitled to 1 week’s statutory notice.
You can make this claim if you are not paid notice with less than 1 year’s service
at the Employment Tribunal, and you must lodge this claim at the Tribunal within
3 months of the date of your dismissal.
The employer can require you to work your notice period. If the employer breaches
this contractual entitlement, you can make a claim for breach of contract. Again,
you must make the claim at the Employment Tribunal within 3 months of the date when
the notice was due, or 6 years in the County Court.
If your employer has told you that you have been dismissed for Gross Misconduct then
you will not be entitled to any notice if this is found to be the case. Gross Misconduct
means an act that goes to the root of the contract and includes conduct such as fighting,
stealing, falsifying documents, dishonesty, acts of bullying and serious insubordination.
If you can legitimately dispute the facts, or the act you are accused of is capable
of amounting to gross misconduct, then you can make a claim for notice pay under
the heading Wrongful Dismissal at the Employment Tribunal. Again, you should make
this claim within 3 months of the date of your dismissal or within 6 years in the
County Court (not recommended). You do not need a year’s service to make this claim.
The Right not to be Unlawfully Discriminated Against
It is unlawful for an employee to be discriminated against on the grounds of Race,
Sex, Sexual Orientation, Religious Discrimination, Disability or Age Discrimination.
The right extends to those directly affected, those disproportionately indirectly
affected and those victimised because they have made a complaint about an act of
Race Discrimination covers acts of discrimination because of a persons Colour, Ethnicity,
or Nationality. Sex Discrimination includes discrimination against both the sexes
and also Pregnancy Related Discrimination. Equal Pay claims are a separate form of
discrimination about Discrimination over Pay.
Sexual Orientation Discrimination is an act of discrimination on the basis of sexual
orientation so this can cover homosexuals being discriminated against by heterosexuals
and vice versa. Religious Discrimination concerns discrimination against recognised
religions and philosophical beliefs.
Disability Discrimination protects those who are disabled for the purposes of the
Equality Act from direct Discrimination or a failure of the employer
to provide reasonable adjustments to assist the employee at work. Recently it has
been determined that a person who cares for a disabled person and is discriminated
against because of their role as a carer is also protected under the law.
You do not have to have a year’s service to make a claim of Discrimination. In order
to make a claim of discrimination you should lodge the claim with the employment
tribunal within 3 months of the last act you complain of. This period is extended
for six months in relation to Equal pay Claims.
Please note that Discrimination is a complex area of employment law and you should
always obtain legal advice from an employment lawyer if you consider that you may
have been discriminated against.
The Right to be provided with a safe working environment in compliance with Health
and Safety legislation
The employee has a duty to ensure their own health and safety and a failure to keep
oneself safe by, for example, not wearing protective equipment provided would potentially
amount to gross misconduct. An employer who breaches Health and Safety law may face
criminal liability as well as civil liability for some breaches. An employee who
honestly believes that they are putting themselves at genuine risk of injury can
refuse to obey a management instruction if that instruction could cause injury to
themselves or others.
If an employee is dismissed because they have made a health and safety complaint,
the employee can make a claim at the Employment Tribunal under Section 100 of the
Employment Rights Act 1996. You do not need a year’s service to make this claim.
The Right to be paid the minimum wage
The new rates from October 2012 has given the full rate to all those aged 21 and
have removed the right for the employer to use tips as counting towards the national
minimum wage. The new hourly rates have been announced at:
The Inland Revenue is the enforcement agency for employers failing to pay the minimum
wage and there are many exceptions to the general rule for different training programmes.
You can make a claim at the Employment Tribunal if your employer fails to pay you
the minimum wage. Before doing so, check with the Inland Revenue, as this can launch
an investigation and provide confirmation as to any failure to pay the minimum wage.
21 years and over
18 to 20 years
16 to 17 years
Rights under the Working Time Regulations
These rights do not just apply to employees, they also apply to workers, which cover
anyone who supplies a personal service, but who is not providing a professional service
(lawyer, accountant, etc.) and who is not genuinely in business for themselves.
You have the right to 28 days paid holiday per year if you are a worker on full-time
hours, inclusive of Bank Holidays. There are 8 Bank Holidays, namely: Christmas
Day; Boxing Day; New Year’s Day; Easter Monday; Good Friday; May Day; Spring Bank
Holiday, at the end of May; and August Bank Holiday.
48 hour Maximum Working Week
An employee cannot be required to work more than 48 hours over an average of the
proceeding 17 weeks unless he or she signs an opt out agreement.
There are a number of key exceptions to this rule in emergency situations and dealing
with essential services. An employee can be required to work more than 48 hours
on some weeks provided the average working time does not exceed 48 hours over an
average of 17 weeks. In making this calculation you should exclude holidays and
absences from the calculation, and add normal working days into the 17 week period
so you avoid getting a skewed result. Please contact us for specific advice.
Daily Rest Periods
Employees should have 11 hours uninterrupted rest in each 24 hour period. A young
worker (16 and 17) should have 12 hours rest. There are numerous exceptions to this
rule, such as the military and for and emergency services, as well as in circumstances
of extraordinary events such as fire and flood. The transport sector has its own
rules concerning drivers’ hours.
Weekly Rest Periods
The employee should not be required to work more than 7 days without at least 1 rest
day. Again, there are a number of exceptions for emergency services.
If you work more than 6 hours you are entitled to a rest break of 20 minutes. Young
workers under 18 are entitled to half an hour after 4 and a half hours.
In circumstances of breach the employee can make a claim at the Employment Tribunal
for a declaration that the employer has breached the working regulations, plus compensation
for the breach in a sum that the Tribunal deems is just and equitable.
A Pregnant Employee
Has the right to written reasons for dismissal with less than a year’s service.
Other employees only have the right to written grounds of dismissal after they have
a year’s service.
The penalty for not providing written grounds of dismissal is 2 weeks pay.
A pregnant employee has additional rights, such as the right to return from maternity
leave to her old job, the right to paid for time off for antenatal appointments and
the right not to be discriminated against.