Solidarity is currently able to provide legal assistance in many arising disputes, this shall also increase as we acquire greater membership and resources.
Within a short period of time we shall provide numerous forms of protection, however there are very strict time limits for submitting applications to an employment tribunal. The deadline for most applications is 3 months from the incident complained about,except in redundancy cases or in equal pay claims when it is 6 months, so make sure that we are informed in time.
Qualifying time limits for individual employment rights
After one month
guarantee pay rights
minimum notice rights
Within 8 weeks
written statement of particulars
After 26 weeks
statutory maternity pay
the right to request flexible working
additional maternity leave (by 14th week before the expected week of childbirth)
After 1 year
written reasons for dismissal
ordinary' unfair dismissal rights
additional maternity leave
After 2 years
time off during redundancy notice
After 4 years
To become a permanent employee on the renewal of a fixed term contract (or re-engagement on a new fixed term contract) and to a written statement confirming this – 4 years unless the continuation of the fixed term contract can be objectively justified. Service before 10th July 2002 does not count.
Contract of Employment
From the moment you accept an employer’s offer of a job you have a legally enforceable contract of employment. The contract can be verbal but you have the right to a written statement of particulars, setting out the main terms and conditions of your employment, within two months of starting the job.
The law on written statements will change with the introduction of the Employment Act, it is widely expected that if you do not receive a written statement of particulars, your employer can be taken to a tribunal. It must include:
- name of employer and employee
date employment began and any period of previous employment which will count towards continuous employment (This is particularly important for assessing redundancy payments)
- rate of pay
- frequency of pay
- hours of work
entitlement to holiday, including public holidays and holiday pay
- job title or brief job description
- any pension entitlements
- sickness procedures and sick pay entitlements
- place of work
- length of notice
- any collective agreements that apply
reference to disciplinary and grievance procedures (These will also become mandatory once the Employment Act is in force.)
You have a right to a written statement and cannot be fairly dismissed for asking for one.
Changes in Contract of Employment
Your contract of employment is an agreement between you and your employer and therefore cannot be changed without your consent.
However, an employer might simply seek to vary part of your contract or even terminate it and issue you with a new one.
If the employer imposes a significant change then you can either:
- Accept the change;
Object to the change, continue working under protest and bring a claim for breach of contract. For example if your wages have been cut you can claim an illegal deduction has taken place;
Leave and claim constructive dismissal (but only for extreme circumstances)
If the employer gives you the proper notice (normally one week for each full year of employment, up to 12 weeks) you may still be able to claim breach of contract if they did not act reasonably and show they had a substantial reason for imposing the change.
Right to an itemised pay slip
Every worker must be given an itemised pay statement which lists gross wages, deductions and net wages to accompany every payment.
At the end of every tax year the employer must give every employee a P60 certificate which shows take-home pay and total tax deductions.
When a worker leaves a job the employer must provide a P45 certificate setting out the earnings and tax paid to date within the current tax year.
Deductions from pay
You must give your written consent to all deductions from your pay, apart from statutory deductions such as income tax and national insurance contributions.
The employer cannot "dock" your wages for any reason without your written consent. This includes deductions for:
- "making good" work done
- protective equipment
- training levy
- public liability insurance
- holiday pay
Any such action by the employer amounts to an illegal deduction and can be challenged in a tribunal.
Employee or Self-employed
The difference between employee and self-employed is very important as most employment rights apply only to employees.
The fact that you have a CIS4 card does not automatically mean you are self-employed. Your true status is a matter of law and is determined by considering all the relevant circumstances surrounding your employment.
There are three elements which must be present in every contract of employment. These form the irreducible core of the employment contract of employment without which a contract cannot be regarded as a contract of employment:
The contract must impose an obligation on a person to provide work personally;
There must be an obligation on the employer to offer work and for the employee to accept that work;
- The worker must be under the control of the employer
Factors pointing towards self-employed status
Common terms that point to you being genuinely self-employed are:
- you provide materials or plant for the job
you bid for the job and carry the cost if your price is too low
you have the right to hire others who answer to you and are paid by you
you are paid an agreed sum no matter how long the job takes
you can decide how and when the job is done within an overall deadline
you work for a large number of different people during the course of a year
Determining employment status
The law is concerned with fact, and will not be deceived by any mechanism your employer might use to hide your true employment status, such as "selling" you materials or making you set up a limited company.
Thousands of "self-employed" building workers should be categorised as employees, and would therefore be entitled to full employment rights, such as:
- protection from unfair dismissal
- the right to notice and redundancy pay
- statutory sick pay
- guaranteed earnings
- holiday pay
- paternity pay
However, inconsistencies within case law means that proving employee status can be difficult in a tribunal hearing.
Any time spent working on CIS4 card with your present company should count as continuous service once you go back on the books. Make sure your contract of employment includes this time as it will affect your rights.
Family Friendly Rights
Paternity Leave is now a right for those employees whose children were born after the 6th April 2003. In order to qualify for paternity leave you must have, or expect to have responsibility for the child’s upbringing, be the biological father of the child, or the mother’s husband or partner, and have worked continuously for your employer for 26 weeks ending with the 15th week before the baby is due.
Eligible employees can choose to take either one week or two consecutive weeks’ paternity leave (not odd days). You can choose to take the leave from the date of the child’s birth, whether this is earlier or later than expected; from a chosen number of days or weeks after the child’s birth; or from a chosen date later than the first week in which the baby is expected to be born.
Leave can start on any day of the week on or following the child’s birth but must be completed within 56 days of the actual 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 expected week of birth. Only one period of leave is allowed irrespective of whether the birth is a multiple birth. Statutory Paternity Pay is paid by employers at a rate of £108.85 a week or 90% of earnings if you earn less than £108.85 a week.
Employees must inform their employer of their intention to take paternity leave by the end of the 15th week before the baby is expected, unless this is not reasonably practicable. You must inform your employer the week the baby is due, whether you want one or two weeks leave, when you want your leave to start. You can change your mind about the date on which you want your leave to start providing you let your employer know 28 days in advance, unless this is not reasonably practicable. You are entitled to return to the same job following paternity leave and can complain to an industrial tribunal if you have been treated unfairly.
These rights apply to mothers whose babies are due or born on or after the 6th April 2003.
The length of ordinary maternity leave has increased to 26 weeks, regardless of how long you have worked for your employer. Women who have completed 26 weeks continuous service with their employer by the beginning of the 14th week before the baby is due can take additional maternity leave, Additional maternity leave starts immediately after ordinary maternity leave and continues for a further 26 weeks. Additional maternity leave is usually unpaid although you may have a contractual right to be paid.
You must inform your employer of the intention to take maternity leave by the end of the 15th week before the expected date of childbirth. You must tell your employer that you are pregnant, the week that the baby is expected, and when you want your maternity leave to start. You can alter this date by giving your employer 28 days notice. Your employer must respond within 28 days setting out the start and end dates of your maternity leave. You cannot work for two weeks after giving birth.
Employees – both mothers and fathers – who have completed one year’s service are entitled to 13 weeks parental leave. The leave is unpaid unless specified by your employer. Parents are allowed 13 weeks in total for each child, unless the child is disabled where the allowance is increased to 18 weeks. For parents of twins, 26 weeks is allowed, 13 weeks for each child. Employees can choose to take parental leave at any time:
Parents of children born on or after 15th December 1999 can take the leave up until the child’s fifth birthday
Parents of children born between 15t December 1994 and the 14th December 1999 can take leave up to 31st March 2005
In adoption cases where the date of placement is on or after 15th December 1999, for five years after the child is first placed with the family for adoption.
Adoptive parents of children placed for adoption between 15th December 1994 and 14th December 1999 can take leave up until 31st March 2005
In the case of a child with a disability up until the child’s 18th birthday.
If the employers and the employees cannot agree on how to implement parental leave then it will fall back on the Maternity and Parental Leave Regulations 1999. This states:
Parental Leave should be taken in blocks of one week, except for parents of disabled children who can take their leave a day at a time.
The employee should give 21 days notice to the employer before taking Parental Leave.
Only up to a maximum of four weeks leave in any one year should be taken.
An employer can postpone an employee's right to take Parental Leave for up to 6 months where the employer's business would not be able to cope. However, an employer cannot postpone an employee's right to take Parental Leave if it is taken immediately after a child is born or placed with a family for adoption.
If an employee is prevented from taking Parental Leave or is dismissed or victimised for taking Parental Leave they may complain to an Employment Tribunal.
In order to make this request you must be an employee, have at least 6 months continuous employment, at the time of the request, and have a child under the age of six. (18 in the case of a disabled child).
Eligible employees will be able to request:
- A change to the hours they work
- A change to the times when they are required to work
- To work from home
The new right does not provide an automatic right to work flexibly, only that their employer must consider their application seriously.
The employee must make the request in writing, within 28 days the employer should arrange to meet with the employee to discuss the application, and within 14 days after the meeting the employer must write to the employee to either accept or decline the proposal. You will have a 14-day period to appeal against the employer’s decision.
In many cases you now have the right to take time off work to deal with an emergency involving someone who depends on you. You cannot be penalised by your employer for taking the time off providing your reasons for doing so are genuine.
An emergency is when someone who depends on you: is ill and needs your help, is involved in an accident or is assaulted, needs you to arrange for their longer term care, needs you to deal with an unexpected disruption or breakdown in care, such as a nurse or childminder failing to turn up, or goes into labour. You can also take time off if a dependant dies and you need to make funeral arrangements or attend the funeral.
Your husband, wife or partner, child or parent, or someone living with you as part of your family can all be considered as depending on you. Others who solely rely on you for help in an emergency may also qualify.
You can take off as much time as it takes to deal with the immediate emergency. For example if a child falls ill you can take enough time off to deal with their initial needs, such as taking them to the doctor and arranging for their care, but you will need to make other arrangements if you want to stay off work longer to care for them yourself.
There is no legal right to be paid for this leave; it is up to the discretion of your employer unless there is a provision contained in your contract of employment. You must tell your employer as soon as possible why you are not at work and how long you expect to be off.
To qualify for a redundancy payment you must establish that you:
- are an employee;
- have at least 2 years continuous service;
- were dismissed due to redundancy
The employer has ceased, or intends to cease, carrying on the business, completely or at that location; or
The requirements of the business for employees to carry out work of a particular kind, or to carry it out in the place in which they are employed, has ceased or diminished.
It makes no difference whether the employee has volunteered for redundancy or been made redundant compulsorily. Both situations are defined as redundancies.
Calculating redundancy pay
The amount of payment is dependent on age and length of service, and is calculated on the basis of every complete year of employment up to a maximum of 20 years.
For each year worked between:
Above 41 = one and half week’s normal pay
Age 22-40 = one week’s normal pay
Below 22 = half week’s normal pay
Unless your contract specifies otherwise, a week’s normal pay is capped at a maximum of £290 (as at November 2006).
Therefore the maximum payment for a worker over 61 with 20 years service is 1.5 x 20 x £290 = £8,700.
You should also receive the correct notice period, or receive money in lieu of notice, which should not be capped but paid at normal weekly earnings and any holiday pay outstanding.
Dismissing an employee on the grounds of redundancy is fair unless the employer fails to adhere to the following regulations; excluded workers, consultation period, alternative work, selection for redundancy, notice period, time off during notice, insolvency whereby compensation can be claimed in an Employment Tribunal.
The following workers are not entitled to redundancy pay:
- Those who do not have at least two years' employment;
- The self employed;
- Those not employed under contracts of employment;
Those working under fixed term contracts of two years' or more who have agreed , in writing to forgo redundancy pay rights on expiry of the term. This will not apply when the Fixed Term Directive comes into force;
Those offered suitable alternative employment, who have unreasonably refused the offer;
- Employees dismissed for misconduct; and
Those dismissed for taking strike action prior to the statutory notice period.
Strike action during redundancy period
Taking strike action before or during a redundancy period can affect employment rights in two main ways.
The period of strike action cannot be counted as part of continuous service . This means that an employee with seven years service who has taken 20 days of strike action will have those 20 days taken subtracted. This will probably only affect those employees who are just entering into a new employment year.
If the strike action takes place before the statutory notice period has begun employers may be able to avoid the statutory redundancy rights by dismissing strikers. Generally employers can do this lawfully after 8 weeks' strike action. However, if strikes that begin after redundancy notices have been issued do not jeopardise entitlement to redundancy pay.
The employer has a legal obligation (where the number of employees proposed for redundancy is 20 or more in one establishment) to consult:
- with appropriate representatives;
- in good time
on measures to avoid, reduce the number or mitigate the consequences of dismissal; and
- with a view to reaching an agreement.
This will change with the implementation of the Information and Consultation Directive - we will keep you informed of any changes.
The employer is obliged to consider offering suitable alternative employment, which is the same as, or not substantially different from, the previous work and must be suitable for the employee. Offers of suitable employment must be made before the old contract ends and must be for work to begin within four weeks of the end date of the original contract.
If you are offered alternative work that differs from your original job, you have a legal right to a four-week trial period.
Selection for redundancy
Employers are obliged to adopt and operate fair criteria for selection for redundancy which are not discriminatory on the grounds of sex, race, or trade union membership.
Any claim for unfair dismissal must be made within 3 months.
Notice to terminate your contract of employment
Your contract of employment will specify the amount of notice the employer has to give to terminate your employment. Remember, your contract does not have to be in writing for it to be legally enforceable.
In all cases this must be at least:
one week for all employees with at least one month’s service but less than two years’ service
one week’s notice for each complete year of service between 2 and 12 years
- 12 weeks notice for employees with more than 12 years’ service
In addition operatives who work under the Construction Industry Joint Council Working Rule Agreement are entitled to one day’s notice after one week’s service.
Time off during notice
An employee under notice of redundancy has the right to reasonable time off with pay during working hours to look for alternative work.
If the company you are working for becomes insolvent you will be entitled to recover the following outstanding debts, either from the Receiver or from the National Insurance Fund:
- Outstanding wages
- Outstanding accrued holiday pay
- Notice pay
- Redundancy pay
- Any compensation due for an unfair dismissal
In the first instance your claim will be treated as preferential and the Receiver will pay you from any remaining assets of the company. If the company has insufficient funds the Receiver should give you a form to claim from the government’s National Insurance Fund.
Warning: You may have to wait up to 3 months for any payment, and because you will eventually receive money in lieu of notice you may not be entitled to receive Jobseekers Allowance during the notice period.
Guaranteed pay and lay off provisions
An employee who is not provided with work throughout a day during which he would normally be required to work under his contract of employment is entitled to be paid a guarantee payment by his employer if:
there is a reduction in the requirements of the employer's business for work of the kind which the employee is employed to do; or
there is any other occurrence which affects the normal working of the business in relation to this type of work.
guaranteed payments can be made only in respect of a complete working day lost - they are not required to be made in respect of a day in which some work is provided, even if that work is provided outside normal working hours;
an employee must comply with any reasonable requirements imposed by an employer to ensure that his services are available;
an employee must not unreasonably refuse an offer from an employer of suitable alternative work (which need not be work he is under his contract employed to perform);
an employee will not be entitled to a guaranteed payment if the failure to provide him with work is a result of a strike, lock-out or other industrial action involving any other employee of his employer or of an associated employer.
Employees should normally receive Statutory Sick Pay of £70.05 a week for any period of absence due to sickness. You will be paid by your employer in the same way as you normally receive your wages. This is a right payable to every employee, and you cannot sign away your right to the statutory payment unless it is replaced by a company scheme that is at least comparable.
The payment is subject to a three-day qualifying period, and no payment is therefore due for the first three days of illness. Where there is a second period of sickness within eight weeks you do not have to serve the qualification period again. SSP is available for 28 weeks, and if you are still unable to return to work you will be transferred onto Incapacity Benefit.
Every worker and employee has the right to paid holidays.
The Working Time Regulations 1998 give a right to 4 weeks’ holiday, paid at a normal week’s wage. There are no separate provisions for public holidays and it is lawful for the employer to count public holidays as part of the entitlement. However, if they do so the public holiday must also be paid at normal pay. You are entitled to take your holidays by giving double the notice to your employer. For example, if you want to take a week’s holiday you must give your employer at least 2 weeks’ notice.
This is now a statutory right for all workers. You cannot give away your rights to holiday pay by signing a waiver.
Case law has shown that it may be unlawful for your employer to include holiday pay in your rate of pay. Holiday pay should normally be paid at the time the holiday is taken unless it is at the end of a contract.
If you do not receive paid holidays your employer is in breach of your contract.
The entitlement for holiday pay now starts when you begin work. For example, if you worked for an employer for 6 weeks, you would be entitled to 2.5 days paid leave.
What is a dismissal?
Employees have the right not to be dismissed unfairly. If you believe you have been dismissed unfairly, an Employment Tribunal will determine the main reason for your dismissal and decide whether it was fair or unfair.
A dismissal takes place when:
- the employment contract is terminated with or without notice
- a fixed-term contract is not renewed
- an employee leaves and claims constructive dismissal
- a redundancy takes place
- a woman is not allowed to return to work after maternity leave
there is a refusal to re-employ after a take-over of the business
the employer claims the employee has dismissed themselves through their actions or behaviour
The employer can fairly dismiss a worker if the dismissal is to do with:
capability to do the job, including skill, aptitude, health or any other physical or mental quality. However the employer will normally be expected to show that they could not be aware of the lack of capability upon engagement and that warnings were given and the expected standard required was made clear to the worker.
conduct, normally gross industrial misconduct will result in a fair and automatic dismissal. Other instances of misconduct should be dealt with by disciplinary procedures.
redundancy - see section on redundancy
failure by the employee to comply with legislation, such as the Health and Safety at Work Act
some other substantial reason, such as the economic necessity of the business or any reason which the employer believes to be substantial
A dismissal is unfair if it does not fall into the above categories click here for details, and some dismissals are automatically unfair, these are where the main reason for the dismissal is:
- membership (or non-membership) of a trade union
- asserting a statutory right, such as the right to paid holidays
- raising health and safety concerns
- acting as a pension trustee
acting as an employee representative, including as a shop steward or safety rep
following a take-over of the company by a new employer covered by the Transfer of Undertakings (Protection of Employment) Regulations
- on the grounds of racial or sexual discrimination
To present a case of unfair dismissal to an Employment Tribunal you must normally submit the claim within three months of the dismissal. With the exception of cases which are automatically unfair (see above), you must have at least one year’s continuous employment with the employer.
A tribunal which finds that a dismissal was unfair can order re-engagement or make a compensatory award up to a current limit of £56,800 unless the dismissal is based on discrimination where there is no overall maximum.
A worker not covered by the protection against unfair dismissal may be able to claim wrongful dismissal when the action of the employer amounts to a breach of the contract of employment.
For example, if you are sacked without proper notice you can claim wrongful dismissal irrespective of your length of service with the employer.
Statutory Disciplinary and Grievance Procedures
Standard statutory dismissal and disciplinary procedure
This procedure applies to disciplinary action short of dismissal (excluding oral and written warnings and suspension on full pay) based on either conduct or capability. It also applies to dismissals (except for constructive dismissals) including dismissals on the basis of conduct, capability, expiry of a fixed term contract, redundancy and retirement.
The employer must write to the employee notifying them of the allegations against them and the basis of the allegations and invite them to a meeting to discuss the matter. The employer should conduct a full investigation of the allegation and take no disciplinary action prior to the hearing.
The employer must invite the employee to a meeting to discuss the allegations – at which the employee has the right to be accompanied by a trade union official or work colleague – and notify the employee of the decision. The employee must take all reasonable steps to attend the hearing, failure to do so may affect a future claim for a compensatory award at a tribunal.
If the employee wishes to appeal the employer must hold an appeal meeting at which the employee has the right to be accompanied by a trade union official or work colleague – and inform the employee of the final decision.
In cases of dismissal, if an employer fails to follow the above stages for anything other than a charge of gross misconduct a dismissal will be automatically unfair. There is a statutory modified which can only be used for cases of gross misconduct. However, even if an employer uses either the standard or modified statutory procedures, a dismissal may still be found to be unfair if the reason for dismissal is not potentially fair or the employer has acted unreasonably.
Standard statutory grievance procedure
Grievances are concerns, problems or complaints that employees raise with their employers. Employers must have procedures available to employees so that their grievances can be properly considered. Where a grievance cannot be quickly resolved with a line manager there is a statutory grievance procedure that employees must invoke if they wish subsequently to use the grievance as the basis of certain applications to an employment tribunal. The grievance procedure will not be used to resolve collective grievances.
In order to raise a grievance you must inform the employer of their grievance in writing.
Be invited by the employer to a meeting to discuss the grievance, where the right to be accompanied by a trade union official or work colleague will apply, and be notified in writing of the decision. The employee must take all reasonable steps to attend this meeting; a failure to do so will result in a reduction of any compensatory award at a tribunal of between 10% and 50%.
Be given the right to an appeal meeting if you feel that the grievance has not been satisfactorily resolved at Step 2 and be notified of the final decision. Where reasonably practicable the appeal hearing should be heard by a more senior manager than attended the first meeting. Employees have the right to be accompanied by a trade union official or work colleague at the appeal hearing.
Wherever possible a grievance should be dealt with before an employee leaves employment, however, where an employee has already left employment and the standard procedure has not been commenced or completed the modified grievance procedure may be applied where both parties agree in writing that it should be used instead of the statutory procedure.
Under the modified procedure the employee should write to the employer setting out the grievance as soon as possible after leaving employment and the employer must write back to the employee setting out their response.
The grievance procedures will not apply if:
Employment has ended and neither of the grievance procedures has been commenced by that point; and since the end of employment, it is not reasonably practicable for the employee to send the Step 1 letter to initiate either the standard or modified grievance procedure.
If the employer has dismissed or is contemplating dismissing the employee or has taken or contemplates taking disciplinary action on the basis of conduct or capability. These cases will instead be covered by the disciplinary and dismissal procedures.
Raising a grievance during the disciplinary process
There may be cases where an employee might raise a grievance in the course of a disciplinary process. If this is the case, the employer should consider suspending the disciplinary procedure for a short period while the grievance is dealt with. The grievance procedures will generally apply if the employer has taken or contemplates taking conduct or capability related disciplinary action, and the employee feels either that it is, or would be, unlawfully discriminatory or that, contrary to the employer's assertion, it is not being taken on conduct or capability grounds, e.g. a clash of personalities rather than ability to do the job.
Claims to an Employment Tribunal
Employees need to be aware that if the statutory procedure applies, they will not subsequently be able to take a case to an employment tribunal unless they have first raised a grievance in writing and waited a further 28 days before presenting the tribunal claim. The tribunal will automatically reject a premature claim, although it may be presented again once the written grievance has been raised. If either party fails to follow the statutory grievance procedure correctly, either standard or modified, then the tribunal will normally adjust any award by between 10% and 50%, depending on which party failed to follow the procedure.
Special Circumstances in which the Statutory Procedures need not be begun or completed
A reasonable belief that doing so would result in a significant threat to themselves, any other person, or their or any other persons’ property; Because they have been subjected to harassment and reasonably believe that doing so would result in further harassment; or
- Because it is not practicable to do so within a reasonable period.
Where you are covered by a collective agreement you should use the procedures in the collective agreement, provided they comply with the statutory procedures.
These provisions must be approached with great caution. Unlike the Courts, Employment Tribunals have the power to strike out cases which are lodged out of time, irrespective of any agreement between employer and employee that the case was still being dealt with by the disciplinary procedure.
To ensure that your application is not dismissed for being out of time an Employment Tribunal application should be submitted prior to the expiry of the 3 month limit from the time the complaint arose, with a request to the Tribunal to stay the proceedings pending the outcome of the disciplinary proceedings.
The statutory disciplinary and grievance procedures apply to employees. However the employment status of a worker in the construction industry is not always clear. If you wish to make a claim to a tribunal for a grievance, such as holiday pay, you should invoke the statutory grievance procedure by writing to your employer with your complaint. This will ensure that you comply with the statutory minimum requirements in making a claim to an employment tribunal. If your employer calls you to a hearing you should request to be accompanied by a trade union official or work colleague at the hearing. If you are making a claim to a tribunal you must comply with the 3-month time limit from when the incident complained about originated.