With Covid-19 causing job losses and the impact of Brexit still uncertain for some parts of the country, people want to know about their employee rights and what legal protections they may have.
For many, rights at work will be tested through the current crisis – as Chancellor Rishi Sunak has repeatedly warned that he can’t save every job.
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Right now, The Big Issue is here to answer your burning questions on employee rights.
How are employee rights affected by furlough? What about a right to breaks and time off? Are there different rights depending on length of employment? And what rights does an employee have if they get fired?
The Big Issue lays out the answers to your most pressing questions.
Am I an employee?
It depends on your status under employment law. There are three main types: an employee, a worker and self-employed.
You’re likely an employee if you have an employment contract, can be told what to do and are expected to work regularly. If you have a contract for services (which can be verbal or written) it is likely you’re not an employee but a worker with fewer legal rights. Someone who is self-employed, agency workers, directors, apprentices or volunteers also have different rights.
As Joanne Moseley, employment lawyer at law firm Irwin Mitchell, explains, “employees have the ‘gold standard’ of employment rights and workers have fewer rights”.
But she warns “it can be difficult for individuals to know if they are an employee or worker – and what’s written in their contract won’t necessarily determine this.
“Tribunals will look at the reality of the relationship between you and your employer and can decide that someone whose contract says they are a worker, is in fact an employee. The contract is only one piece of the jigsaw puzzle.”
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When do my employee rights begin?
You have certain rights before you are even an employee at your place of work, such as being free from discrimination during the recruitment process, including the right not to be asked family-related questions such as whether you are pregnant.
Do I have a right to a contract?
You have the right to a written statement with the basic details, terms and conditions of your employment such as monthly pay, job title, paid holiday and minimum notice period.
Your employer has to give you this statement within two months of starting your new job, and if they make any changes they must tell you. You also have the right to a detailed payslip with a breakdown of pay and any deductions.
What are my rights around being dismissed or leaving?
There are five potential reasons for fair dismissal: conduct; capability; redundancy (see our explainer here); a legal reason and “some other substantial reason”. Find out more on ACAS here.
Be warned, “some other substantial reason” can include everything from a personality clash with colleagues to dismissing someone covering maternity leave.
If you’re dismissed when you’re pregnant or on maternity leave, your employer must give you a written explanation of the reason.
In all cases, your employer should go through a fair procedure before dismissing you.
“If an employer does not follow a fair procedure before dismissing someone, their dismissal can be unfair even if there are fair grounds for it,” explains Joanne Moseley. “So the reason and procedure go hand in hand – they both have to be done properly.”
❓ Did you know the average wait time to make a claim for unfair dismissal or discrimination at a tribunal is 9 months?
— CitizensAdvice (@CitizensAdvice) October 24, 2020
You will generally only have a right to claim unfair dismissal if you have two or more years of service. Make sure you start your appeal within three months of the day you were dismissed.
However, you can appeal against an “automatic unfair dismissal” even if you haven’t worked there for two years (see below).
If you are being dismissed, you are entitled to minimum notice periods depending on how long you’ve worked there. See ACAS for more details.
In cases of gross misconduct, you can be dismissed without notice. But a fair dismissal procedure should still be followed.
If you wish to give your notice to your boss, it’s best to put it in writing. But remember, if you later change your mind your employer does not have to accept this.
How do my employee rights change at two years?
At two years, you can claim unfair dismissal and claim redundancy pay (see our explainer here).
But you can still make a claim for “automatic unfair dismissal” without two years’ service if it relates to: an application for flexible working; the National Minimum Wage; the working time regulation; health and safety reasons; discrimination; and whistleblowing.
It could also be automatically unfair if an employer dismisses someone who refuses to return to work because of concerns about Covid-19.
Do I have a right to flexible working?
Yes, you have a right to request flexible working if you’ve worked for your employer for at least 26 weeks, and you haven’t made another flexible working request in the last year. Your employer should follow the ACAS Code of Practice and must let you know their decision within three months.
What wages do I have a right to?
Employees and workers have a right to the National Minimum Wage. If you’re aged 18-20, this is £6.45 per hour before tax. If you’re 21-24 it’s £8.20. If you’re 25 or older, you’re entitled to the National Living Wage, which is £8.72 per hour.
What are my employee rights around health and safety?
Your employer has a legal duty to take care of your health and safety while you’re working, including working from home. Employers should risk assess home working or ask for a self-assessment. Find out more from ACAS here.
If you are a worker, you also have rights in this area. Last month, the High Court ruled the UK government had failed to properly extend health and safety protections to “gig economy” workers.
— Acas (@acasorguk) December 10, 2020
Do I have a right to take breaks from work?
Yes, the “working time” regulation states you have the right to breaks. There are three kinds of break: rest breaks while working (20 minutes), daily rest (11 uninterrupted hours) and weekly rest (24 hours). Find out more here.
How many hours a week do I have to work?
The working time regulation states employees cannot be forced to work more than 48 hours a week (not including breaks) on average over 17 weeks. Night workers should also only work eight hours in 24 hours on average.
The regulation is based on an EU rule designed to protect employees, so watch out for how this might be affected by Brexit.
Your employer can ask you to opt out of this limit, but remember that you can refuse. If you want to op out, confirm this in writing.
You also have the right to cancel your opt-out and must give seven days’ notice. Your employer can’t stop you cancelling your opt-out decision.
You might have to work more than 48 hours a week on average if you work in the emergency services, the police, armed forces or other jobs.
“But employers are still responsible for the health and safety of staff and they need to consider whether working long hours puts them at risk,” explains Moseley. “The opt out of the 48-hour working week doesn’t trump that.”
Am I working overtime?
When you’re calculating your hours, you need to consider your overtime.
Overtime is quite complicated. You have to work overtime if your contract says so, although by law you can’t be forced to work more than 48 hours a week on average.
Employers don’t have to pay you for overtime, but you also don’t have to work overtime if that means you’ll earn less than the national minimum wage on average.
There are three kinds of overtime: voluntary (which you don’t have to do), guaranteed and non-guaranteed (which you do).
Importantly, regular overtime should in most cases be factored into your holiday pay.
Remember, overtime does not necessarily count as you working longer to finish something off.
Other kinds of working time may include attending training, travelling around for work and on-call time.
What are my rights around time off in lieu?
Instead of choosing to pay you for overtime, your employer may decide to offer you time off in lieu. You and your employer should keep a written record of your hours.
If you’re part-time and your full-time colleagues are paid for overtime, you have the right to be paid at the same rate – but only when you’ve worked the same amount of hours as your full-time counterpart. If you’re not sure, seek advice.
What are my rights around leave and holiday?
As an employee or worker, you have a right to paid holiday and various types of leave. As a full-time employee you’re entitled to 5.6 weeks paid holiday (28 days including bank holidays), but your employer may give you more than that.
If you’re part time, you’re entitled to the same paid leave as your full-time colleagues, but relative to the hours you work pro rata.
Remember, you still accrue holiday when you’re off sick or on parental leave. ACAS has more helpful information.
You can be off work unwell for up to seven days in a row before you need a note from the doctor. You can still request a holiday while sick and return to sick leave after the holiday. See more details here.
Women have the right to time off for antenatal care and 52 weeks’ statutory maternity leave, and their partner (regardless of gender) can take one to two weeks’ paid paternity leave. You also have a right to leave for adoption. For parental pay and leave, use this helpful calculator here.
You have the right to time off for emergencies with dependants such as partners, parents or children, but your employer doesn’t have to pay you. Meanwhile, compassionate leave depends on your contract.
When you’re on leave, you have the right to your job or a similar job back when you return.
For other time off such as career breaks, check out this government list.
Are my employee rights affected by furlough?
No, they’re the same. You can’t be more likely to be selected for redundancy (see our explainer here) or dismissal because you’ve been on furlough.
What expenses should I be paid?
You can expect your employer to pay you back for business expenses for your job, such as travel and so on.
Be warned, if you expense the wrong things your employer may bring disciplinary action against you or HMRC may hit you with more tax. Here is HMRC guidance on claiming travel expenses and the five conditions for business expenses here.
Are my employee rights affected if I don’t belong to a union?
“Being a member of a trade union doesn’t reduce your employment rights but might affect your contractual rights,” explains Moseley.
This includes changes to pay or conditions you may not always like.
“For example, during the pandemic, some unions agreed with the employer to cut overtime rates to keep the business afloat during this difficult time.”
If you and your employer can't agree on how much you should have been paid—you can challenge them. Here's how ⤵️
1️⃣ speak to a trade union
2️⃣ raise a grievance
3️⃣ early conciliation
4️⃣ your last resort: a tribunal
Find out more on our websitehttps://t.co/5VvsHvVIcm
— CitizensAdvice (@CitizensAdvice) October 27, 2020
How do employee rights differ internationally?
Peter Woodhouse, employment lawyer at law firm Stone King, explains the UK sits “somewhere in the middle” between France and the US.
“The US varies by state but generally has nothing that compares with our unfair dismissal law. There is also no obligation to provide paid holiday and the general holiday offering is in fact about 10 days.
“By contrast, France has much stronger employee rights than us. They have (at least in principle) a 35-hour working week, more restrictions on economic related dismissals, and a minimum award of six months’ salary for unfair dismissal for all but the smallest employers.”
Where do I complain or get advice about employee rights?
You’d appeal first to your employer. If they don’t change their mind you must then go to ACAS (Advisory, Conciliation and Arbitration Service) which offers free advice, before you can make a claim to an employment tribunal.
Moseley has another handy tip. “Check if you have legal expenses insurance as part of your car or house insurance,” she says.
“If you do and you think you have an employment claim, your insurer will usually refer your case to a solicitor who will represent you if they think that you are likely to win your claim and it’s cost effective to pursue it.”
You can also get legal advice from Citizens Advice and your trade union.