Your Rights at Work - A Guide

Transcription

1 Your Rights at Work - A Guide June 2007

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3 Your Rights at Work - A Guide Introduction This guide provides an overview of some of the main employment rights to which individuals are entitled. It also provides sources of information and lists a number of useful contacts where further assistance can be obtained. Please note that this booklet gives general guidance only in order to provide a basic understanding and should not be regarded as a complete or authoritative statement of the law. Individuals who consider their rights have been infringed should seek independent advice, for instance from their trade union representative, the Labour Relations Agency or their local Citizens Advice Bureau. Appendix 1 contains the contact details of a number of organisations which may be able to assist you. This booklet is available in a number of languages other than English (Lithuanian, Polish, Portuguese and Cantonese). Upon request, consideration may be given to making this guide available in alternative formats and in other languages. The contents of this booklet apply equally to men and women. For simplicity, however, the masculine pronoun is occasionally used. Employment Rights guidance material is updated on a regular basis and can be viewed online at As part of this process the Department welcomes any comment/s from members of the public regarding the content of these booklets. All comments should be addressed to: Employment Rights Branch Department for Employment and Learning Room 203 Adelaide House Adelaide St Belfast BT2 8FD Alternatively, comments may be sent via to erbooklets@delni.gov.uk 2

4 CONTENTS ARE YOU AN EMPLOYEE OR A WORKER? TERMS AND CONDITIONS OF EMPLOYMENT HOLIDAY/HOURS OF WORK PAY TRADE UNIONS, COLLECTIVE RIGHTS AND EMPLOYEE REPRESENTATION REDUNDANCY DISMISSAL NOTICE PERIODS AND DISCRIMINATION PARENTAL RIGHTS TIME OFF WORK BUSINESS TRANSFERS DISPUTES, COMPLAINTS AND REMEDIES EMPLOYMENT AGENCIES AND BUSINESSES AGENCY WORKERS USEFUL SOURCES OF ADVICE AND ASSISTANCE APPENDIX 1: USEFUL ADDRESSES APPENDIX 2: USEFUL BOOKLETS

5 ARE YOU AN EMPLOYEE OR A WORKER? There are two main categories of individuals covered by employment law - employees and workers. Many rights apply only to employees but an important number apply to all workers. Some rights apply as soon as an individual starts work, others will depend on the completion of a qualifying period, for example, an employee must be employed for at least two years to qualify for redundancy pay. All employees are workers but not all workers are employees. In general, an 'employee' is someone who works for an employer under the terms of a contract of employment, whether it is written down, agreed orally or implied by the nature of the relationship. Many casual workers are likely to be employees with short-term contracts. A 'worker' is someone who works for an employer, whether under a contract of employment or not, who provides a personal service e.g. a casual worker, agency worker, or some freelance workers. For the most part self-employed people or businesses to which an employer sub-contracts are not defined as workers. If you are unclear about whether you are an employee or worker, or unsure about which rights you may be entitled to, we recommend you obtain independent advice - several sources of such advice are listed in Appendix 1. TERMS AND CONDITIONS OF EMPLOYMENT A contract of employment exists when an employee starts work. The contract need not always be in writing and normally may only be changed with the agreement of both parties. All employees must be given a written statement of employment particulars within two months of beginning work. The statement must include details, such as the employer s name; worker s job title; pay; hours of work; holiday entitlement; pension; period of employment; notice periods and disciplinary and grievance procedures. The employee must be told about changes to their employment statement within one month. When terms of contracts are not adhered to, the employee or employer may be able to make a complaint of breach of contract. 4

6 HOLIDAYS/HOURS OF WORK The majority of workers are entitled to the following minimum standards: a maximum average working week of 48 hours - although a worker can choose to opt out of this maximum limit; 11 hours of uninterrupted rest between each working day; 4 weeks paid annual leave per year - this is due to increase from 1st October 2007; 1 whole day off a week; 20 minutes break if they are required to work 6 hours or more; and free health assessments for night workers on a regular basis. There are special arrangements for young workers, doctors in training and night workers. Rolled up holiday pay (i.e. holiday pay included in your hourly rate) is considered unlawful. PAY Most workers, including home workers, employment agency workers, part-timers and casual workers are entitled to at least the National Minimum Wage (NMW) for every hour they work. NMW From 1 October 2006 From 1 October 2007 Main Rate for Workers aged 22 and over Development Rate for year olds Under Employees are entitled to an individual written pay statement which must show gross pay, take home pay and record amounts and reasons for any deductions. 5

7 Deductions may normally only be made when they are either: required by law (e.g. Income Tax or National Insurance); authorised by the worker s contract; or agreed in advance by the worker in writing. The Agricultural Wages Board set rates of pay, hours and holidays in the agricultural sector. Any queries in this area should be made to: Agricultural Wages Helpline: TRADE UNIONS, COLLECTIVE RIGHTS AND EMPLOYEE REPRESENTATION Employees have the right to join (or not to join) a trade union of their choice. Their employer may not dismiss them, select them for redundancy or subject them to any other detriment for joining a union or participating in lawful union activities. Where there is sufficient support, trade unions may be recognised by an employer for collective bargaining purposes. This enables a union to negotiate pay, hours of work and holidays on behalf of workers - where agreed, it may also negotiate other employment conditions. An employer may only deduct a worker s union membership fees where the worker has given his written agreement. Employees have rights protecting them against unfair dismissal for taking lawfully organised industrial action. Union members have rights not to be unjustifiably disciplined by their trade union. From April 2007 employees in businesses with 100 or more employees can exercise a right to be informed and consulted about certain issues in the business they work for, including prospects for employment and changes to the way work is organised. 6

8 REDUNDANCY Redundancy occurs for different reasons, for example because a workplace is closing down or because fewer employees are needed. Redundancy Payments Employers must make a lump-sum redundancy payment to employees dismissed because of redundancy and who qualify for a payment. Generally, you must have at least two years service with your employer and been made redundant to qualify for a payment. The amount you should receive will be based on age, length of service with the employer and weekly pay. The employer must provide a written statement showing how the payment has been calculated. You may also qualify for a redundancy payment if you are laid off, put on short time or are on a fixed-term contract. Employees may not qualify for a payment if, without good reason, they refuse an alternative suitable job with their employer. If you disagree with your employer about whether you are redundant or the amount you may be due, you can apply to an Industrial Tribunal - see Appendix 1. If your employer goes out of business the Redundancy Payments Service may be able to pay you. To make a claim, you should contact The Redundancy Payments Service as soon as possible after your employment ends - see Appendix 1. DISMISSAL NOTICE PERIODS AND DISCRIMINATION Employees have the right not to be unfairly dismissed and may complain to an Industrial Tribunal if they are. To qualify, they must normally have worked for their employer for at least one year. However, there are a range of circumstances where employees may complain regardless of their length of service, for instance if they are dismissed for trade union membership/activities, maternity related grounds or exercising certain other statutory employment rights. Qualifying employees who are dismissed are entitled, on request, to receive a written statement of reasons for dismissal within 14 days. 7

9 As a minimum, an employee is entitled to the following notice before his employment is ended: an employer must give one week s notice after one month s employment, two weeks notice after two years employment, three weeks after three years, up to twelve weeks after twelve years employment. Dismissal on grounds of redundancy may be unfair if the employee is selected purely for certain reasons, including: trade union membership/activities; maternity related grounds or exercising certain other statutory employment rights. Dismissal is only fair if the employer can show it relates to the employee s conduct, capability/qualifications for the job, redundancy or retirement. It is against the law to be dismissed or discriminated against (treated differently) for any of the following reasons: sex; race; age; disability; sexual orientation; religious belief or political opinion. If you have been affected by discrimination you can contact the Equality Commission or The Office of the First Minister and Deputy First Minister - see Appendix 1. PARENTAL RIGHTS All women are protected from unfair treatment including dismissal for reasons relating to pregnancy and maternity leave. All pregnant employees are entitled to time off with pay to keep appointments for ante-natal care made on the advice of a registered medical practitioner, midwife or health visitor. Women expecting a child on or after 1 April 2007 are entitled to 52 weeks maternity leave - made up of 26 weeks ordinary maternity leave and 26 weeks additional maternity leave - regardless of how long they have worked for their employer. Statutory Maternity Pay or Maternity Allowance is available for 39 of the 52 weeks to women who qualify (although some employers offer more generous packages going beyond the statutory minimum). Different rights applied before 1 April A woman wishing to return to work before the 52 weeks are up, or wishing to change her return date must give at least 8 weeks notice to her employer of the new date. A woman returning from maternity leave is also generally entitled to return to her original job on terms and conditions that are the same as those she would have had if she had not been on leave. Similar rights are available to people adopting a child. 8

10 Employees who have completed one year s service with their employer are entitled to 13 weeks unpaid parental leave for each child born. Employees who meet certain conditions are entitled to take one or two consecutive weeks paternity leave. During their paternity leave employees may be entitled to one or two weeks Statutory Paternity Pay. Parents of children under six or disabled children under 18 have the legal right to request flexible working patterns and their employers have a duty to seriously consider their requests. From 6 April 2007, this right also extends to carers of an adult spouse, partner, near relative or any adult living at the same address. TIME OFF WORK All employees are entitled to reasonable time off work without pay to deal with an emergency involving a dependant, such as a child, spouse, civil partner or parent. Employees who hold certain positions at work also have the right to time off with pay to undertake activities related to those positions. The positions include trade union and employee representatives and health and safety representatives. Employees aged 16 or 17, and some 18 year olds, who have not achieved a certain standard in their education or training may have the right to reasonable time off with pay to study or train. Employees holding certain public positions must be given reasonable time off, without pay, to perform their public duties. These include members of district councils, education/health bodies and district policing partnerships. An employee who is being made redundant and who has been employed by his employer for at least two years is entitled, whilst under notice, to take reasonable time off with pay to look for new work or arrange training for future employment. BUSINESS TRANSFERS Broadly speaking, employees continuity of employment and terms and conditions are preserved, when a business, or part of one, is taken over by or transferred to a new business. Your employer must consult the workforce representatives about the transfer before it occurs. You must be told: when and why a business transfer is happening; what the impact on employees will be; and whether certain measures like re-organisation will be taken and how they will affect you. 9

11 On 6 April 2006, revised legislation covering Transfers of Undertakings (the 2006 TUPE Regulations ) was brought into effect. The new 2006 TUPE Regulations introduce a widening of the scope of the Regulations to cover cases where services are outsourced, insourced or assigned by a client to a new contractor (described as service provision changes ). In most circumstances it is normally unfair for employers to dismiss employees for reasons connected with business transfer, but there are some exceptions to this, e.g. redundancy. You can refuse to work for a new employer but you may be regarded as having resigned and will have no right to claim unfair dismissal or redundancy pay. This is a particularly complex area of law and so specialist advice should always be sought. DISPUTES, COMPLAINTS AND REMEDIES In many circumstances employers and employees are required to follow a minimum three-stage process in order to address disputes at work. The disputes concern dismissal and disciplinary action (where the employer is unhappy with the employee s conduct or performance) and grievance issues (where the employee has a complaint about an employment rights issue at work). The three steps consist of: a letter outlining the problem; a meeting to discuss the matter (employees have the right to be accompanied at certain meetings, for instance by a trade union official) and an opportunity to appeal at a further meeting. Employers and employees who cannot resolve a problem through informal discussion should attempt to complete the three step procedure. Not following these steps could have serious implications for any subsequent claim to a tribunal, including whether or not a tribunal can accept the claim. Where the employment protections afforded to a worker are abused, he may make a claim to an Industrial Tribunal or, if appropriate, the Fair Employment Tribunal. Employment Rights guidance material on resolving disputes in the workplace is available online from the Departmental website under Employment Rights - publications. 10

12 EMPLOYMENT AGENCIES AND BUSINESSES Employment agencies and employment businesses must treat all work-seekers fairly. Generally, they must: provide terms and conditions of employment; check suitability of workers for jobs; keep proper records and client accounts; only charge fees for certain jobs in the entertainment industry; not withhold pay; not force a worker to use other services, such as accommodation; and not prevent you using other employment agencies. The Department for Employment and Learning will investigate complaints about mistreatment by employment agencies/businesses in Northern Ireland. Should you have a complaint you can complete our complaints form online or write to Employment Rights Branch - see Appendix 1. AGENCY WORKERS Agency workers are entitled to many of the same employment rights as other workers. These include rights to: the National Minimum Wage; working time limits (including rights to rest breaks, minimum annual holiday entitlement of 4 weeks, holiday pay and a limit on the working week); no unlawful deductions from wages; health and safety protection; not be discriminated against under equality legislation, including race, sex, disability, religious belief or pregnancy; join a union; and be accompanied at a disciplinary or grievance hearing. Some agency workers may also have rights to maternity, paternity or adoption pay but this will depend on their National Insurance contributions. As agency workers are generally not classed as employees they are not eligible for maternity, paternity or adoption leave. 11

13 You are normally entitled to statutory sick pay if you have worked for the same agency for more than three months. A range of guidance which may assist migrant workers has been produced and is available in a number of languages other than English - see Appendix 2. USEFUL SOURCES OF ADVICE AND ASSISTANCE THE LABOUR RELATIONS AGENCY (LRA) The LRA can help individual employees and employers by providing impartial advice, information and services concerning their legal rights and duties. For instance, LRA conciliation can help resolve problems without the need for a tribunal hearing, while the LRA Arbitration Scheme provides an entirely voluntary alternative to an Industrial Tribunal hearing in cases of unfair dismissal or flexible working. Conciliation and arbitration can be less confrontational and costly than going to a tribunal. For further information see contact details at Appendix 1. OFFICE OF THE INDUSTRIAL TRIBUNALS AND THE FAIR EMPLOYMENT TRIBUNAL (OITFET) These are judicial bodies set up to resolve employment rights disputes between employers and workers. A worker may make a claim to a tribunal if he believes his employment rights have been infringed. Tribunals have powers to make financial awards, impose penalties and in certain cases order reinstatement of employees. Complaints to an Industrial Tribunal must normally be made within 3 months of the date of the infringement of the right, although this varies for some types of case and special rules apply where the workplace dispute resolution procedures are being followed. For further information see contact details at Appendix 1. INDUSTRIAL COURT The Industrial Court s main functions are to adjudicate on applications relating to statutory trade union recognition for collective bargaining purposes and resolving disputes involving employee information and consultation rights. For further information see contact details at Appendix 1. EQUALITY COMMISSION FOR NORTHERN IRELAND The Commission is an independent public body which aims to advance equality, promote equality of opportunity, encourage good relations and challenge discrimination through promotion, advice and enforcement. For further information see contact details at Appendix 1. 12

14 HEALTH AND SAFETY EXECUTIVE FOR NORTHERN IRELAND (HSENI) HSENI is the public body responsible for the promotion and enforcement of health and safety in the workplace. For further information see contact details at Appendix 1. HM REVENUE AND CUSTOMS HM Revenue and Customs will be able to advise you if you qualify for Working Tax Credit or Child Tax Credit. Their Helpline for Northern Ireland is:

15 APPENDIX 1: USEFUL ADDRESSES Citizens Advice Bureau Regional Office 11 Upper Crescent BT1 7NT Tel: Web: Department for Employment and Learning Employment Rights Branch Room 203 Adelaide House Adelaide Street BT2 8FD Tel: Web: Department for Employment and Learning Redundancy Payments Service Room 203 Adelaide House Adelaide Street BT2 8FD Tel: Fax: Freephone: Web: Department for Social Development Social Security Agency Lighthouse Building 1 Cromac Place Gasworks Business Park Ormeau Road BT7 2JB Tel: Web: Department of Trade and Industry Response Centre 1 Victoria Street LONDON SWIH 0ET Tel: Web: Environmental Health Cecil Ward Building 4-10 Linenhall Street BT2 8BP Tel: Web: Equality Commission Equality House 7-9 Shaftesbury Square BT2 7DP Tel: Web: 14

16 Health and Safety Executive for Northern Ireland Enquiries 83 Ladas Drive BT6 9FR Tel: Web: HM Revenue and Customs National Minimum Wage Freepost PHQ1 NEWCASTLE-UPON-TYNE NE98 1ZH Tel: N. I. Helpline: Web: Home Office Direct Communication Unit 2 Marsham Street LONDON SW1P 4DF Tel: Web: The Industrial Court Room 203 Adelaide House Adelaide Street BT2 8FD Tel: Fax: Web: enquiries@industrialcourt.gov.uk Labour Relations Agency Head Office 2-8 Gordon Street BT1 2LG Tel: Web: Labour Relations Agency Regional Office 1-3 Guildhall Street LONDONDERRY BT48 6BJ Tel: Web: Northern Ireland Housing Executive Head Office The Housing Centre 2 Adelaide Street BT2 8PB Tel: Web: 15

17 Office of the Industrial Tribunals and the Fair Employment Tribunal Long Bridge House Waring Street BT1 2EB Tel: Web: Office of the First Minister and Deputy First Minister Castle Buildings Stormont Estate BT4 3SR Tel: (General enquiry line) Web: Police Service of Northern Ireland Brooklyn 65 Knock Road BT5 6LE Tel: Web: NIC/ICTU Carlin House 4-6 Donegall Street Place BT1 2FN Tel Fax Web: 16

18 APPENDIX 2: USEFUL BOOKLETS The Department for Employment and Learning has produced the following guidance material which provides further useful advice: Advice for Lithuanian, Polish or Portuguese workers seeking employment in the UK (English/Lithuanian) Employment Agency/Business Regulations - Frequently Asked Questions for Work-seekers (English/Lithuanian/Polish/Portuguese/Russian/Tetum) Employment Rights Booklet Series (32 booklets providing details of individual rights) Fixed-Term Work: A Guide to the Regulations Information and Consultation Regulations Part-Time Work: The Law and Best Practice Public Interest Disclosure (Northern Ireland) Order Resolving Disputes at Work - A guide for employees Working Time Regulations - A Detailed Guide FURTHER GUIDANCE All the above guidance plus a range of further guidance is available on our website or by contacting:- Employment Rights Branch Department for Employment and Learning Room 203 Adelaide House Adelaide Street BT2 8FD Tel: Fax: Text-phone: employment.rights@delni.gov.uk Web: 17

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20 Further information: telephone: website: