EMPLOYMENT MATTERS

Contracts and Hours

A contract of employment is defined as an agreement between the employer and employee, and it forms the basis of the employment relationship. A contract is made when you accept an offer of employment and a number of rights and duties come into force as soon as this happens.

You do not have to be given a written contract of your employment for it to be legally valid but most employers will ask you to sign a written agreement as it cuts down on potential disagreements in the future. The Employment Rights Act 1996 does require employers to give most employees a written statement of their main responsibilities under their job description within two calendar months of starting a job.

Under UK law, all employment contracts have the following terms included (whether written or implied):

• to maintain trust and confidence through cooperation.
• to act in good faith towards each other
• to take reasonable care to ensure health and safety in the workplace 

Your normal working hours should be set out in your employment contract but, as a general rule, employers must adhere to the Working Time Regulations (1998), which govern the number of hours a person can work. These regulations determine your maximum weekly working time (not more than 48 hours a week on average over 17 weeks, unless you choose to or work in a sector with its own rules), pattern of work and holidays, as well as your daily and weekly rest periods. Specific regulations exist to protect the health and working hours of night workers.

Exceptions to the 48-hour average maximum working week include people in the armed forces, police or emergency services in some circumstances; domestic servants in private houses; and sea or lake transport workers. People in other professions can choose to work over and above these hours but must optout of the 48-hour limit in writing. You cannot be penalised if you refuse to sign an opt-out agreement with your employer.

Overtime

Employers are not legally required to pay you for any overtime that you work and there are no minimum statutory levels of overtime pay, although your average pay rate must not fall below the National Minimum Wage. Overtime rates will vary from employer to employer, and may include Bank Holidays or working weekends. When you start a new job, your contract of employment should explain whether you can expect to be paid for any overtime you work and how the rates will be worked out.

Some employers will offer their employees ‘time off in lieu’ as an alternative to paid overtime. This means that you can take back the extra time you have worked, usually at a time that is convenient to your employer.

Ask your company whether they have a policy relating to time in lieu or whether they deal with requests on a case-by-case basis.

If you will be expected to work overtime as part of your job, this should be outlined in your contract of employment. If you were not informed from the outset that you would be expected to work overtime, then you have the right to refuse. Equally, unless your contract guarantees you overtime, your employer can stop you working above your contracted hours, although they cannot discriminate against you by letting others work overtime but refusing to let you.

You can find more detailed information about your hours of work, perhaps if you are a part-time worker or your pattern of work is to change, by visiting www.gov.uk.

Rights to ask for flexible work

All employees have a right to request for flexible working hours. Employers will have a duty to consider requests seriously and will be able to refuse only when there is a clear business reason to do so.

You have a statuary right to make a flexible working request from your 1st day of your employment and you can make 2 request per year. Your employer must give you a decision within 2 months of making your request.

There may be a number of flexible working options that you wish to consider including going part-time, flexi-time, remote working, school hours only, etc.

For more advice and information about Flexible Working and your rights, you might like to visit www.workingfamilies.org.uk or phone the helpline for parents and carers on 0300 012 0312.

Visit www.gov.uk (under Employment: Flexible Working) for details of the flexible working statutory application process.

Leave Entitlements

Basic Holiday Entitlement

All workers have the right to 5.6 weeks of annual leave (this works out as 28 days for someone working five days a week) but many employers offer more. Your employer does have the right to determine when you can take your leave and whether or not this includes Bank Holidays (many companies expect their employees to take some of their annual leave over the Christmas period, for example). If you are a part-time worker, your annual leave entitlement is worked out on a pro rata basis.

You can start building up your annual leave entitlement as soon as you start a new job and should be paid your normal pay rate throughout your holiday. If you decide to leave your job, you should be paid for any holiday that you have not taken in that year. You are still entitled to your holiday allowance when you are away from work on maternity, paternity or adoption leave.

You should always give your employer notice of when you intend to take your holiday (as a rule of thumb, the notice should be twice as long as the amount of leave you intend to take, e.g., four weeks’ notice for a two-week break). If your employer needs you to take holiday at a specific time, they should give you a similar notice period.

If you become ill just before or during a period, you have booked as annual leave, you have the right to ask your employer to convert your absence to sick leave.

You must notify your employer that you are ill, following your company’s normal procedures for logging sickness. If you would be unable to take all of your annual leave because of a period of sickness in any one year, you may be entitled to carry it forward into the next year. An organisation such as Acas should be able to give you further advice (see Useful Contacts/Organisations). 

Sick leave

If you have to take time off work because you are ill, you may be entitled to sick pay through your company (usually called ‘contractual’ or ‘occupational’ sick pay) or through Statutory Sick Pay. Your entitlements should have been made clear under your contract of employment within two calendar months of starting your job.

Employers can offer any sick pay scheme as long as it doesn’t fall below the minimum requirements (i.e., it cannot be less than Statutory Sick Pay if it is offered at all).

A typical contractual sick pay scheme usually comes into effect after you have worked for your company for a certain length of time (e.g.,  once you have completed a three-month probationary period). After this, you may be offered full pay for a certain number of weeks, followed by half pay and finally, no pay, after a designated amount of time. Many sick pay schemes clearly state that payment is at the employer’s discretion.

Statutory Sick Pay is available to most employees, even if they have only just started a new job at the time they become ill. You may be entitled to Statutory Sick Pay if you are off work for at least four days in a row due to illness (including Bank Holidays, weekends and days you do not normally work) and you have average weekly earnings of at least £123 a week (this is worked out by looking at your average earnings over the eight weeks before your illness began).

Statutory Sick Pay will be paid by your employer for up to 28 weeks. To claim Statutory Sick Pay you must tell your employer that you are sick and provide medical evidence from the eighth day of your illness. The current standard rate for Statutory Sick Pay is £116.75 a week, it will usually be paid in the same way as your wage on your normal pay day.

If your entitlement to occupational or Statutory Sick Pay ends, your employer should complete and give you an SSP1 form, which can be used to support a claim for Employment and Support Allowance.

Dismissal or unfair treatment

It is against the law for your employer to dismiss you or single you out for redundancy or any reason connected with pregnancy, childbirth or maternity leave. This applies from day one of your pregnancy and you are protected no matter how long you have worked for your employer.

If you feel you are being discriminated against on the grounds of your pregnancy or family commitments, you can call Acas for free confidential advice (0300 123 1100). Alternatively, try the Citizen’s Advice Bureau or your trade union.

Raising a grievance

If you have problems or concerns with your work, working conditions or a relationship with another colleague that you wish to raise with your manager, you can do so in the form of a grievance. This is a structured way to have your concerns addressed and, if possible, resolved. It is clearly in the interests of your workplace to resolve problems before they can develop into major difficulties.

In the first instance, it is advisable to raise a grievance at an early stage, informally, with your immediate line manager. However, if the matter is not resolved, your company should have a formal grievance procedure that you can follow. Pursuing the formal route should be a last resort rather than the first option.

There is no legally binding process that you or your employer must follow when raising a grievance, although Acas publishes a guide to ‘Disciplinary and grievance procedures’ that you may find helpful (as, although your employer’s failure to follow the Code cannot result in legal proceedings, it may be considered if your case were to end up at an employment tribunal).

If you do decide to raise a grievance, you should try to keep to the facts of your case and put your concerns in writing to a manager who is not the subject of the grievance. Your employer may offer you the opportunity to attend a meeting to discuss your grievance and how you feel it could be resolved. You have a statutory right to be accompanied by a companion at a grievance meeting and many people choose a colleague, trade union member or an official employed by the trade union to accompany them.

Following a grievance meeting, your employer should identify in writing what actions will be taken to address your concerns. You have the right to appeal if you are not satisfied with the action taken. Your appeal should be dealt with impartially and, if possible, by a manager who has not previously been involved with your case.

If you have raised a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to address your grievance. However, if the disciplinary and grievance issues are related, your employer may decide to deal with both issues at the same time.

Disciplinary proceedings

A disciplinary proceeding may occur if an employer is unhappy with your performance or conduct at work. Disciplinary proceedings enable an employer to outline how you can improve your performance as well as giving you the opportunity to present your perspective.

If the issue is not resolved, your employer may choose to take disciplinary action or dismiss you. In the first instance, most employers will choose to raise their concerns with you informally. In most cases, this is usually an effective way of resolving a problem or clearing up any misunderstandings. However, your employer is entitled to go straight to their formal disciplinary or dismissal procedures.

In line with the Acas code of practice for Disciplinary and Grievance Procedures, your employer’s disciplinary procedure is likely to be the following:

• an initial letter from your employer setting out the issue
• a meeting with your employer to discuss the issue
• the right to appeal your employer’s decision 

Your employer’s disciplinary procedure should be available in writing and clearly state the disciplinary procedure rules, what performance and behaviour might lead to disciplinary action and what action your employer has to take.

You should also be told, in writing, who you can appeal to if you are unhappy with your employer’s decision. Your employer has the right to suspend you from work if you are undergoing disciplinary or dismissal proceedings. If your contract of employment states that you can be suspended without pay, then your employer does not have to pay you.

However, in most cases, you will be paid in full to make it clear that you are not being punished while your case is still under investigation or review. For more information about disciplinary proceedings, visit www.gov.uk 

Early Conciliation

Early Conciliation is a free, fast and less stressful alternative to an employment tribunal for resolving workplace disputes.

For anyone thinking about lodging an Employment Tribunal Claim, Early Conciliation is available.

At Acas, their advice is always that it is best for employers and employees to resolve disputes as early as possible. Reaching a settlement through conciliation is quicker, cheaper and less stressful for all concerned than a tribunal hearing.

Anyone intending to lodge an Employment Tribunal Claim will first have to notify Acas by completing a simple Early Conciliation notification form.

Acas will contact the potential claimant or representative within two working days of receiving the form. They gather basic information on the dispute itself and provide information about Early Conciliation. The case will then be passed to a conciliator who will aim to make contact with both parties and talk through the issues to see if a solution can be found.

Being dismissed by an employer

Dismissal is when an employer ends your contract (with or without notice). This may be because they have decided not to renew a fixed-term contract or may be classed as constructive dismissal where you have resigned because your employer breached the terms of your employment contract.

If an employer wants to dismiss you, they must be able to show that they have a valid reason for your dismissal (e.g., that you were unable to do your job) and that they have acted reasonably in the circumstances.

They must also carry out a full investigation before they dismiss you.

If you feel that you were not told about a relevant rule or procedure, or that you have been dismissed for something routinely done by other colleagues, you may be able to claim unfair dismissal. A dismissal may be automatically classed as unfair if you were dismissed because you tried to claim one of your statutory employment rights

(You must usually have worked for your employer for two years before you can claim unfair dismissal.).

Wrongful dismissal is when your employer breaches the terms of your employment contract, by not giving you notice, for example, or failing to follow their disciplinary or dismissal procedures.

A dismissal can be both wrongful and unfair. Unlike unfair dismissal, there is no minimum employment period to claim compensation for wrongful dismissal, but you would need to pursue such a claim through the courts rather than an employment tribunal.

Your employer should always give the amount of notice outlined in your contract of employment or the statutory minimum notice period (whichever is longer). Summary dismissal (dismissal without notice) is only allowed in cases of ‘gross misconduct’ (e.g., if you have been violent towards a colleague).

If you have been employed by the same employer for two years or more; were pregnant, on maternity or adoption leave at the time of your dismissal; or you were on a fixed-term contract that was not renewed, you have the right to ask for your dismissal to be explained in writing by your employer.

If you think you have been wrongfully or unfairly dismissed, you may decide to take your case to an Employment Tribunal. A service like Acas can explain your rights in more detail.

Equality

The Equality Act 2010 became law in October 2010 and replaces previous legislation, such as the Sex Discrimination Act 1975, Race Relations Act 1976 and the Disability Discrimination Act 1995.

The Act still protects the same groups that were covered by the existing equality legislation: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity (all known as protected characteristics).

However, it has gone further towards defining the different types of discrimination (direct, by association, perception and indirect) and extending protection to cover disability or gender reassignment, for example. The Act also clearly defines what is understood by harassment, third party harassment and victimisation.

It may be of particular note that, under the Equality Act 2010, it is unlawful for employers to discriminate against disabled people.

The disability parts of the act cover:

• application forms
• interview arrangements
• aptitude or proficiency tests
• job offers • terms of employment including pay
• promotion, transfer and training opportunities
• work-related benefits such as access to recreation or refreshment facilities
• dismissal or redundancy
• discipline and grievances 

An employer must also make reasonable changes to applications, interviews and work so that you are not disadvantaged.

These are known as ’reasonable adjustments’.

Under the Equality Act 2010, an employer must not:

• treat a disabled person less favourably because the person has a disability - this is known as ‘direct discrimination’
• indirectly discriminate against a disabled person, unless there is a fair and balanced reason for this • directly discriminate against, or harass a person because they are associated with a disabled person • directly discriminate against or harass a person who is wrongly thought to be disabled
• victimise anyone 

Victimisation might arise because the person has taken, or is believed likely to take action under the Act. For example, making a complaint or taking a case to a tribunal or court. Or it might be because they have helped somebody to make a complaint or to take other action.

Also, your employer must not treat a disabled person less favourably because of something connected with the person’s disability, unless there is a fair and balanced reason. For this form of discrimination, the employer must know or should reasonably have been expected to know that the person is disabled.

These rights do not just apply to employment. The Equality Act covers other forms of work like partnerships, contract work, or holding an office like a director of a business.

Under the Equality Act 2010, an employer has a duty to make reasonable changes or adjustments for disabled applicants and employees. Adjustments should be made to avoid you being put at a disadvantage compared to nondisabled people. The need to make reasonable adjustments can apply to the working arrangements (e.g., your working hours or providing an adapted piece of equipment) or any physical aspects of the workplace (e.g., replacing steps with a ramp).

Also, if it is reasonable, the employer needs to provide an extra aid to ensure the disabled worker is not disadvantaged. This might mean providing special or adapted equipment to do the job.

The Equality Act 2010 (Amendment) Regulations 2023 (Amendment Regulations) came into effect on 1 January 2024. The purpose of the Amendment Regulations is to reproduce in the Equality Act 2010 (EqA) certain interpretive effects of retained EU law which provide protection against discrimination, and which would otherwise have ceased to apply from the end of 2023 because of the Retained EU Law (Revocation and Reform) Act 2023.

The changes relate to:

• indirect discrimination where a person without a relevant protected characteristic suffers substantively the same disadvantage as those with that protected characteristic
• direct discrimination related to pregnancy, maternity and breastfeeding
• direct discrimination in the context of access to employment and occupation as regards public statements outside of an active recruitment process
• the right to equal pay where employees’ terms are attributable to a single source (Article 157 of the TTFEU)
• the definition of disability in relation to employment and occupation 

More information can be found online at www.gov.uk or www.acas.org.uk.