Tuesday, 21st November 2017
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WHAT ARE MY EMPLOYMENT RIGHTS?

There are a number of laws and regulations in place which are extremely useful to know and that ensure each and every one of us is entitled to the same rights, with regards to work.

JobZoo have enlisted the help of international law firm Dentons (formerly Salans Ltd) to lay out our employment rights, including useful information about:

  • National Minimum Wage and various pay rates
  • Regulations surrounding paid and unpaid internships and work experience placements
  • Employment contracts
  • CVs and job applications
  • Equal Opportunities and the Freedom of Information Act

Applying for a Job

There are important issues that people should be aware of from a legal perspective when applying for a job, particularly given the introduction of the Equality Act 2010 (EA 2010) at the beginning of October 2011.

Discrimination when applying for a job

Under the EA 2010, employers are prohibited from discriminating against job applicants because of any of the following “protected characteristics”:

  • Age
  • Disability
  • Gender reassignment
  • Marriage or civil partnership
  • Pregnancy or maternity
  • Race
  • Religion or belief
  • Sex or sexual orientation

Under section 39 of the EA 2010, an employer (A) must not discriminate against or victimise a person (B):

  • In the arrangements A makes for deciding to whom to offer employment
  • As to the terms on which A offers B employment
  • By not offering B employment

The “arrangements” referred to in the first bullet point could include such things as the format and content of job application forms, the location and timing of interviews and the job requirements.

For example, a company that proposes an interview in a building with no disabled access could be discriminating against disabled applicants.

Companies must make reasonable adjustments to ensure that they do not discriminate against disabled applicants.

Similarly, a company that does not offer a choice of interview times could be discriminating against female applicants with childcare commitments.

Unlawful discrimination can be direct or indirect. Direct discrimination means treating someone less favourably because of a protected characteristic – for example, a sexist employer who does not give a female applicant a job because she is female.

Indirect discrimination means applying an apparently neutral criterion that disadvantages a group of people who have a protected characteristic and which cannot be objectively justified – for example, an employer who requires applicants to pass a fitness test in relation to a job that is largely desk-based. This is likely to disadvantage applicants with a disability and also older applicants.

Companies must not victimise applicants because they have previously made a complaint in relation to discrimination or assisted in someone else’s complaint or done anything to uphold their equality rights or those of someone else.

A company will be in breach of the EA 2010 if it discriminates against or victimises an applicant based on a belief that the applicant has a particular protected characteristic – for example, if a homophobic employer does not offer a job to an applicant because he thinks that the applicant is gay, even though the applicant is not in fact gay.

Companies must not discriminate against applicants who are associated with someone with a protected characteristic, such as an applicant with a disabled child.

Companies must not harass job applicants. Telling sexist jokes in an interview with a female applicant, for example, could constitute harassment.

Questions about health

Under section 60 EA 2010, employers are not allowed (except in the limited circumstances below) to ask job applicants about their health before they have offered them a job or included them in a pool of successful candidates to be offered a job when a position becomes available. This includes the employer asking questions to the applicant directly or asking a previous employer. Health questions include questions regarding current state of health and any previous sickness or sickness absence record at a previous job.

An employer can only ask questions about health before offering a job in the following circumstances:

  • To understand whether reasonable adjustments need to be made to allow you to attend an assessment or interview for the job
  • To establish whether you will be able to carry out an absolutely essential function of the role
  • To monitor diversity in the range of persons applying to the employer

An employer asking a prohibited pre-employment health question will not, in itself, amount to unlawful disability discrimination against you as a job applicant (although it is an unlawful act in respect of which the Commission for Equality and Human Rights can take action).

However, if the employer acts on your response to a prohibited health question to your detriment, this may amount to unlawful disability discrimination allowing you to bring an Employment Tribunal claim.

The employer’s conduct in relying on the information given in response to a prohibited pre-employment health question will also count as facts from which an Employment Tribunal could conclude that the employer was guilty of disability discrimination.

Data protection

The Data Protection Act 1998 provides a number of legal rights relevant to job applications.

When applying for a job, you may be asked for information relating to protected characteristics, usually as part of the employer’s equal opportunities monitoring policy.

This information is usually requested in a separate form to the application. The company should make clear that this information is not being used to assess your application and should, of course, not act on the information to discriminate against applicants.

The company should make you aware of what personal data of yours that it plans to store, the length of time it will be stored and whether or not it plans to share it with any third parties.

If you are unsuccessful in your application, the company should notify you if they plan to keep your personal data on their records and inform you of your right to request that it is removed.

Agency workers

If you are an agency worker, you are entitled to be provided with information about job vacancies within the hirer from the first day of your assignment.

Recruitment agencies

Recruitment agencies are prohibited from charging you a fee for finding you work (unless you are in the modelling and entertainment industry, in which case commission can be charged on your earnings from work that the agency has found you).

National Minimum Wage

The National Minimum Wage (NMW) was introduced in 1999. It gives workers the right to a specified minimum hourly rate of pay. Employers are obliged to pay at least the NMW to workers.

Who qualifies for NMW?

The National Minimum Wage Act 1998 applies to “workers” working in the UK who are over school leaving age. A “worker” is an individual working under:

  • A contract of employment
  • A contract to personally do or perform work or services for another, provided that the other is not a customer or client of a profession or business undertaking carried on by the individual

There are very few exceptions, so you are very likely to qualify as a worker during a period of work experience or under an internship or apprenticeship arrangement and you would therefore be entitled to the NMW.

Rates of the national minimum wage

  • Standard rate - workers aged 21 and over (minimum hourly rate) - From 1 October 2013: £6.31; 1 October 2012: £6.19; 1 October 2011: £6.08
  • Development rate - workers aged 18-20 and those aged 21 and over doing accredited training in the first 6 months of employment (minimum hourly rate) - From 1 October 2013: £5.03; 1 October 2012: £4.98; 1 October 2011: £4.98
  • Young workers rate - workers above compulsory school age but under 18 and not apprenticed (minimum hourly rate) - From 1 October 2013: £3.72; 1 October 2012: £3.68; 1 October 2011: £3.68
  • Apprenticeship rate - apprentices under 19 or in the first year of apprenticeship (otherwise refer to age bands above) - From 1 October 2013: £2,68; 1 October 2012: £2.65; 1 October 2011: £2.60
  • Accommodation off-set - (maximum deduction per day from NMW where employer provides accommodation) - 1 October 2012: £4.82; 1 October 2011: £4.73; 1 October 2010: £4.61

Calculating whether you are being paid the NMW

Take your total gross pay and divide it by the number of hours you have worked in the relevant pay reference period. This is explained below:

Pay reference period

The pay reference period for calculating your hourly pay is one month, or if you are paid by reference to a period that is shorter than one month, that period. If you are paid less frequently than every month, your employer must ensure that you are still receiving at least the NMW each month.

Pay

When calculating your average hourly rate, all payments earned in relation to the relevant reference period should be taken into account, regardless of when you actually receive them.

  • Add up your basic salary plus any bonus, commission and any other benefits to get your total gross pay
  • Subtract any deductions that your employer is entitled to make in relation to expenditure in connection with your employment (such as expenditure on uniform or tools)
  • Do not subtract tax or national insurance contributions for the purposes of the NMW calculation

Hours

The calculation of the hours you have worked during the reference period will differ depending on which of the following 4 defined categories of work you do:

  • Time work - this is work paid by reference to the time you work, eg hourly paid work
  • Salaried hours work - work where you are paid an annual salary in equal weekly or monthly instalments for working a fixed number of hours per year
  • Output work - work that is paid depending on your productivity, eg piecework or work that earns commission. You must be paid at least the NMW for each hour worked or a fair piece rate for each piece produced or task performed. This is calculated by multiplying the NMW by 120% and dividing by the number of relevant items that the average worker produces for the employer in an hour. Output workers must also be paid for any time spent travelling on business (excludes travel between home and work)
  • Unmeasured work - this is work that does not fall into any of the 3 categories above. You calculate your hours either by recording every hour worked or by agreeing with your employer a daily average of hours to be worked. Unmeasured workers are entitled to at least the NMW for time spent travelling on business

General

Your employer is obliged to keep records of the hours you have worked and payments made to you to establish that they have paid you at least the NMW.

Contracts and conditions of employment

Legally, the employment contract is at the heart of every employment relationship. Even if nothing has been written down, there will still be an employment relationship when one person works for another. So it’s important to have a basic understanding of the main points.

Contract terms

Contract terms can come from several different sources, including the following:

  • Verbal agreement
  • A written contract or offer letter
  • An employee handbook
  • Statute
  • Implied terms (as explained below)

Statement of terms of employment

Section 1 of the Employment Rights Act 1996 requires employers to provide employees with a written statement of the basic terms of employment no later than two months after the start of employment. A section 1 statement can be provided in the form of a statement, a letter of engagement or a contract of employment. The required particulars are listed below:

Names of employer and employee

  • It is important to know precisely who is your employer

The date the employment starts and the date the period of continuous employment began

  • The date that your continuous employment began is important as it is the start date when considering your entitlement to various statutory rights such as redundancy pay, maternity/paternity pay or protection from unfair dismissal
  • In some cases, employment with a previous employer can count towards your continuous employment

Job title or brief description of the work

  • This should be clear so that the scope of your role is well defined

Normal place of work

  • Your normal place of work must be stated
  • If you can be required to work at other places then this must be stated and the employer’s address must be provided

Pay and the interval of payment

  • Details of your salary and any other cash benefits such as a bonus or commission must be provided. The interval of payment must be stated - daily, weekly or monthly, for example

Hours of work

  • Your normal working hours must be stated
  • You may be entitled to overtime for additional hours or the contract may say that you agree to work extra hours when needed for no additional pay for the proper performance of your job
  • There is a statutory limit on working time which applies to workers in most jobs – where this applies, a worker’s average working time must not exceed 48 hours per week. You are likely to be asked to opt out of this limit by agreement in writing

Holiday entitlement and holiday pay

  • The statement should be clear whether your entitlement includes public holidays or not. There are usually eight bank holidays per year in the UK (nine in 2012)
  • The statutory minimum paid holiday entitlement is 28 days a year including bank holidays
  • There must be sufficient detail to allow you to calculate your entitlement to holiday pay

Pensions

  • A statement of whether there is a contracting-out certificate in force. Both occupational and personal pension schemes can contract out of the state second pension and instead provide alternative benefits outside the state system
  • Confirmation that access will be provided to a designated stakeholder scheme (if the employer does not provide entitlement to pensions benefit)
  • The information required to be provided is likely to change when the government introduces the National Employment Savings Trust (NEST) scheme and other reforms on 1 October 2012

Information on disciplinary and grievance procedures

  • Who to apply to in relation to a grievance
  • Who to appeal to if you are dissatisfied with any disciplinary decision or decision to dismiss you

Further terms of employment

The above is the minimum that your employer must provide you with. The information must be contained in one written statement which must be given to you within two months of the start of your employment. Your employer must also provide you with the additional information below either in your statement or in your offer letter or contract, or it may be provided in a supplementary statement or other reasonably accessible document, such as the Employee Handbook.

Supplementary particulars

Termination and notice period

  • The statutory minimum notice period for an employee with at least one month’s continuous employment is one week
  • Employees with two years’ continuous employment or more are entitled to a minimum of 1 week’s notice for each complete year, up to a maximum of 12 weeks’ notice

Working abroad

  • If you are required to work outside the UK for more than a month, the statement must state (amongst other details) the period you are expected to work outside the UK and the currency you will be paid in

Sickness absence and sick pay

  • This should cover requirements for self-certification, requirement for medical certificates and examination by the employer’s doctor
  • If you are off work sick for four consecutive days, you are entitled to statutory sick pay (for up to 28 weeks at £85.85 per week from April 2012, currently £81.60 per week)
  • You may be contractually entitled to enhanced sick pay from the employer but quite often there is no such entitlement

Pensions

  • Details of any pension scheme the employer operates
  • If not, details of a designated stakeholder scheme you can contribute to

Disciplinary and grievance information

  • Disciplinary rules
  • Any procedure for taking disciplinary or dismissal decisions

Collective agreements

  • This is an agreement between an employer or association of employers and one or more trade unions. The agreement may cover terms and conditions of employment and conditions of work
  • Details of any collective agreement that directly affects your employment should be provided

Implied terms

Implied terms are not written or verbally agreed between the parties, they are implied by law into the employment relationship. However, implied terms may be modified, extended or excluded by any express term in the contract.

Your employer has an implied duty, for example, to provide you with work if it is available to be done, to pay your wages and to give you reasonable notice of termination (if length of notice is not stated in the contract).

You have an implied duty, for example, to serve your employer with good faith and fidelity, to exercise reasonable care and skill and not to disclose confidential information or trade secrets.

The most important implied term is the duty of mutual trust and confidence between you and your employer. The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. For example, a manager bullying an employee would be a breach by the employer of the implied duty of mutual trust and confidence.

Can your employer change the terms of your contract?

If changing your terms of employment is not authorised under your contract, your employer could:

  • Ask for your express agreement to the new term (consent should be in writing)
  • Impose the change without consulting you and then try to rely on your conduct to establish that you have given implied consent to the change
  • Terminate your employment and offer you re-employment on new terms

If the proposed change is to your detriment, your employer will need to provide you in return with consideration (i.e. something of value) for the change to be legally binding.

Contributor:

Salans

The Employment Rights section has been prepared by Salans, an international law firm, and covers a range of important topics which affect all eligible workers, whether already employed or looking for a job.

www.dentons.com


Salans


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