yourjobrights.co.uk

Many employment rights only apply to "employees" - an employee is someone who has a contract of employment. If you do not work under a contract of employment you still enjoy some rights, but these are limited. It is not always easy to be sure which type of relationship applies, often the Courts have to decide. Some people are self-employed and only enjoy very limited rights as they do not need the same protection as an employee

If you have regular work and your employer deducts tax and National Insurance it is likely that you are an employee. If you only work "as and when required" in a casual arrangement, you are likely to be classed as a "worker" - which does give you some rights. In particular you are entitled to the Minimum Wage and Holidays with pay. However only "employees" can claim unfair dismissal, redundancy or maternity rights for example.

If you are not sure about your employment status and your employment rights contact our Advice Line for further help.

Every employee has a contract of employment - even if this is not in writing. Your contract is a legal arrangement between you and your Employer and neither party has the right to just change this without consultation. A contract of employment does not have to be written, but it is very difficult to resolve disputes without evidence of what was agreed. You should ask for a written job offer and terms of your employment.

If you are self employed you are not classed as an employee. It is important to note that a contract of employment is issued only to an employee If you are not self employed then you must work for someone and as such you are entitled to some rights.

Any person who works for someone else in return for pay, is in a contractual relationship, regardless of whether there are any written terms and agreements. In this respect, an employment contract is very much like any other sort of contract.

You can actually have a contract with an Employer before starting work. This means that if an Employer withdraws a job offer at the last minute, you may have a claim for breach of contract.

If this has happened to you, contact our Advice Line for further help

In order to have a contract there should normally be the following;

(a)an offer, usually the offer of a job on certain terms and conditions, ie. your offer letter, but remember that an offer does not have to be written.

(b)acceptance, i.e. agreement to accept the job on the terms offered;

(c)valuable consideration, i.e. some evidence of an intention to form a relationship. This could be the employer's promise to pay you in return for your commitment to work. The confirmation of a start date from the Employer could be classed as consideration.

If you are leaving to join another employer, do not resign from your current job until you have written confirmation of a start date and all your employment terms in the new job.

There is no legal requirement for a contract to be in writing, unless you are an apprentice - where the rules are different. The law does however require that you must be issued, within two months of starting work, with a written statement of the terms and conditions under which you are to be employed. This is considered in more detail here. These terms and conditions that are often referred to as the employment contract. In fact this is not your contract but it will contain many of the terms that are in your contract

Apart from your statutory rights, employers are free to propose whatever arrangements they wish and you are free to accept or reject (or try to negotiate) the terms and conditions proposed

Contracting out (compromise agreements)

In certain situations you may contract out of your statutory employment rights, including taking a case to an employment tribunal, under 'compromise agreements'. In return for giving up your rights in this way you should negotiate some compensation from your Employer. For more information refer to the section on "Your Dismissal Rights" or contact our Advice Line for further help

Compromise Agreements will only be recognised when a number of conditions are satisfied:

(a)the agreement must be in writing;

(b)the agreement must relate to your particular complaint eg. unfair dismissal or discrimination;

(c)you must have received independent legal advice from a relevant independent adviser. Normally your Employer or union will pay for the legal advisor.

(d) your legal advisor must have in force an insurance policy or professional indemnity to cover the risk of a claim for losses because of poor advice;

Contract terms

Your contract is made up from a number of terms - not everything in your contract is written down for example.

Contract terms may be:

(a)express - terms which are spelled out clearly -normally verbal or in writing;

(b)implied - terms which are not spelled out in writing perhaps because they are too obvious to be recorded or because they are common practice within the business or industry. Some terms and conditions of employment become implied because they have been an accepted way of doing things for a period of time. They are often not written down but rapidly become accepted by new employees. Examples include the provision of transport to and from work, early work finish the day before Christmas, a relaxed attitude to timekeeping, etc. Where such customs have grown up and been accepted, they can be said to be implied into your contract. If your Employer changes these without proper consultation, this could well be a breach of your contract. If this happens contact our Advice Line for further help.

(c)incorporated - these are terms which may be implied into your contract of employment through collective agreements (with a trade union)or works rules;

(d)statutory - these are statutory regulations, e.g. maternity rights or equal pay, and apply automatically to any contract.

Changes to your Contract

Once the terms and conditions of your contract have been agreed, your employer may not, generally speaking, vary them without consultation with the workforce (unless the circumstances are exceptional). Significant changes to your terms and conditions should have your consent. If you agree to the change there is no problem.

However any attempt to change your hours or alter holiday entitlement (as examples of significant changes), should not be done without proper consideration as this is a change to your contract and you may reject the proposed change. If changes are forced upon you , you do have a number of options, you may even be able to claim breach of contract or constructive dismissal. Contact our Advice Line for further help.

Your contract may be varied by:

mutual agreement between you and your employer;

an agreement with the trade unions, whether or not you are a union member;

reliance on a flexibility clause in your existing contract;

statute, Statutory Instrument and European Directive.Your Employer has to comply with these even if it means a change to your terms.

Your employer giving you proper notice of the change after trying to reach agreement. You are entitled to 1 weeks notice for every year of your service, up to a maximum of 12 weeks notice. Check your contract, if you have one, to see whether changes can be made earlier due to a clause in your contract.

Written statement of your employment terms

You are entitled to receive a written statement regardless of the number of hours you work. This statement is often referred to as a "section 1 statement". Every employee, whose employment is likely to last for 1 month or more should be given a statement within two months of commencing employment.

There are some exceptions. If you are in the following categories you are not entitled to a Statement;

(a)people working on board ships where the ship is registered outside Great Britain,

(b)mariners employed as seamen on a UK-registered ship working under a crew agreement the form and content of which has been approved by the Secretary of State;

(c)masters or members of a fishing crew where pay is through shares in the gross profits.

This information may be given to you in installments, provided it is all given within two months of you commencing work.

What must be included in your written Statement

a)who the parties to the contract are (name of the company and the employee);

(b)the date when your employment began and the date when your period of continuous employment began taking into account any employment with a previous employer which counts;

(c)the scale or method of calculating pay, and the intervals at which it will be paid

(d)any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours);

(e)any entitlement to holidays, including public holidays, and holiday pay;

(f)the title of the job you are employed to do, or a brief job description;

(g)your place of work, or if you are required to work at various places, an indication of this and the employer's address.

(h)where the employment is temporary, the period it is to continue for (or the date it is to end);

(i)any terms and conditions relating to incapacity for work due to sickness or injury, including any sick pay provisions;

(j)any terms and conditions relating to pensions and pension schemes;

(k)the length of notice required from both parties;

(l)details of any collective agreements (with a trade union) which affect your terms and conditions and, where the employer is not a party, by whom they were made;

(m)where you are required to work outside the UK for more than one month:

(i)the period of work outside the UK;

(ii)the currency in which he or she is to be paid;

(iii)any additional remuneration and any benefits to be provided because of the requirement to work outside the UK;

(iv)any terms and conditions relating to his or her return to the UK;

(n)a note setting out:

(i)any disciplinary rules or reference to a reasonably accessible document setting out those rules;

(ii)the names or descriptions of any persons to whom the employee can apply if dissatisfied with any disciplinary decision, and how such application should be made;

(iii)the name or description of any person to whom the employee should apply for the redress of a grievance, and how such application should be made;

(iv)what further steps might be necessary following any such application or reference to a reasonably accessible document explaining them;

(o)whether a contracting-out certificate is in force.

Where there are no employment particulars to be stated under a paragraph, that fact should be stated.

The statement can refer to other documents for details of sick pay, pensions, and disciplinary and grievance procedures.

The employer must give you a written statement of any changes to the particulars of employment not later than one month after the change.

Where there is a change in the identity of the employer but continuity of service is not broken, a new statement of particulars need not be given, but the employee must be notified in writing of the change

None of these provisions apply if you are employed for less than one month.

If you have any concerns about your rights to a written statement contact our Advice Line for further help.

Protected Employment Rights where Business are Transferred, or taken over (TUPE)

If your company is taken over, sold to another employer - or your job is transferred out of a local authority to a private contractor - your terms and conditions of employment go with you to the new business. Your employment is continuous - your service is not broken by the transfer.

If your terms of employment are significantly changed as a result of the transfer, you may have a claim for breach of contract. This is a complex area of law. For further advice, contact our Advice Line for further help

If you have been dismissed by your old employer, or the new employer, because of the takeover or merger - the dismissal is automatically unfair and you can claim compensation at Tribunal. You do require a years service to make this claim.

It is possible that you may be made redundant as a result of the transfer. Your employer must follow the correct procedures of communication - both with you as an individual, and collectively - ie. with your union or employee representatives.

Under the Transfer of Undertakings (Protection of Employment) Regulations, wherever a business is transferred, the following rights are automatically taken over by the new employer:

There are certain exceptions such as criminal liabilities and, some pension rights.

This protection for employees effectively means that the new employer cannot vary any of the terms or conditions of employment of those people who transferred in, unless the employer can demonstrate either:

1) the changes were not connected in any way with the transfer; or

2) the changes are for an economic, technical or organisational reason that has to be pushed through, and are not connected with the transfer itself.

There is no timescale on this protection, so even if the changes come several years after the takeover you may be protected.

This area of law is very complex. If you are in a business that has been sold or transferred and you are not sure of your position contact our Advice Line for further help.

If you are employed on a fixed term contract (this is a contract with a finish date built in) you gained some new employment rights from 1st. October 2002.

You are now entitled to the same broad employment package as employees doing similar work to you with your Employer, but who are on permanent status. The basic position is that you should not lose out on your terms of employment when compared to someone on the permanent staff. This extends to pay and pensions. This does not mean a like for like comparison, your overall package is taken into consideration.

One of the main rights is that after you have had 4 years on a fixed term contract, your employer must be able to justify extending it further. It will be possible to extend it where the Employer has a good business case. If not, your contract will become permanent. The 4 year period started in July 2002, so it will be july 2006 before this comes into effect.

Another change is that the Employer cannot now exclude your rights to claim redundancy pay once you have had 2 years continuous service. If the fixed term offer includes restrictions on redundancy or unfair dismissal, these will not be enforced by a tribunal. This applies to contracts agreed after October 2002.

If you are on a fixed term contract (or you have been offered one) and feel you have been unfairly treated contact our Advice Line for further help.