In the UK, whichever employment status you fall into, your rights might come from your contract of employment, if you have one.
These are, unsurprisingly, called 'contractual rights'. Alternatively, they may come from statutes – Acts of Parliament, or regulations.
These are your 'statutory rights'. They may apply to you as an individual, for example your protection against unlawful discrimination. Or, they may apply to you and others. These are 'collective', or group rights – for example, the right to union recognition where this is supported by enough people to get through the legal hurdles.
A major difference between the two types is that contractual rights can be enforced by anyone with a contract, whereas statutory rights apply only to those who meet the eligibility requirements under a particular statute.
NUJ reps, in particular, need to be familiar with these laws in order to help members. Our members are sometimes surprised to learn that what they consider fair, and what is lawful, are not always the same thing.
The employment contract
Your contract of employment details your 'terms and conditions', or Ts & Cs, which govern how work is to be done and paid for. You need to know what those terms and conditions are, and how to make sure the employer is sticking to them.
A contract can be verbal. A legal contract exists if you accept a job offer from an employer, even if there is nothing in writing. If the employer later withdraws that offer, you may be able to claim damages for breach of contract – although proving the existence of a verbal offer can be difficult.
This is what most of us regard as our contract. Your written statement of employment particulars is a legal document which sets out your basic terms and conditions of employment. Your contract of employment may include your written statement of particulars.
Changes to the law in April, 2020, strengthened your rights in regard to a written statement. From this date, employers must provide you with this statement on or before the first day of your job, however long it is expected to last. This applies to all workers; before this date, it related only to employees.
Your employer must give you a single document telling you:
- Their name.
- Your name and job title, or a description of your work, together with your start date.
- How much and how often you will get paid.
- Your hours and days of work, and if and how they may vary (also if you will have to work Sundays, nights or overtime).
- Holiday entitlement, and whether that includes public holidays.
- Where you will be working, and whether you might have to relocate.
- If you work in different places, where these will be, and what your employer's address is.
- How long a job is expected to last, and what the end date is if it's a fixed-term contract.
- How long any probation period is, and what its conditions are.
- Any other benefits – for example, childcare vouchers and lunch.
- Obligatory training, whether or not this is paid for by your employer.
If you are an employee, the document must also include the date that a previous job started, if it counts towards a period of continuous employment.
If you have to work outside the UK for more than a month, the document must also include:
- How long you'll be abroad.
- What currency you'll be paid in.
- What additional pay or benefits you'll get.
- Terms relating to your return to the UK.
You are entitled to more information, which your employer is allowed to provide in separate documents as long as you have reasonable access to them at work – for example, a staff handbook, in printed or digital form, or on the employer's intranet. These are called 'statutory particulars'.
Your employer must provide on or before your start date:
- Any rules governing sick pay and absence through sickness or injury.
- Information about other types of paid leave – for example, paid maternity or paternity leave.
- Notice periods.
Your employer must provide within two months of your start date:
- Details of pension contributions and schemes.
- Details of any collective agreements which directly affect your contract terms.
- Details of any other right to non-compulsory training provided by your employer.
- Details of disciplinary and grievance policies, or signposting to where you can find them.
If there are no terms relating to any of these items, your employer must say so.
Not only new workers have the right to a written statement. From April, 2020, if you are an existing worker, you can ask your employer for a fresh written statement. Your employer has one month to comply.
If your contract terms change, your employer must provide an amended written statement within a month of the change.
Despite our contracts being crucial in determining what rights we enjoy at work, many of us do not read it fully. Some of us – even including NUJ members – have not referred to it since we put it in that dusty box on top of the wardrobe when we started work. This may be because the contract is badly written or includes confusing terms. But it is a valuable source of information and we need to make ourselves familiar with its contents.
The 'terms' of your contract set out the rights and obligations of both employee and employer. Some terms are described as 'express' because they are expressly or specifically set out, either orally – for example, in your initial interview – or in writing. Express terms include pay, hours and holidays.
They are generally legally binding, unless they attempt to remove a statutory right. An express term cannot trump a statutory right – for example, it cannot allow less than the statutory minimum of 5.6 weeks' holiday.
Other terms are called 'implied'. These are not set out expressly, but are left unsaid. This is because they are largely held to be obvious to both employer and employee – for example, a duty for your employer to provide a healthy and safe working environment for you. Implied terms include statutory rights, such as that to equal pay, as well as duties.
In the absence of an express term, there are three situations in which contract terms may be implied:
- Where a contract term is necessary to give 'business efficacy' to the contract, ie to make it workable (Law at Work 2020, p81).
- Where a contract term is so obvious that if an 'informed outsider' asked you and your employer, when you entered the contract, whether you meant to be legally bound, then both of you would say 'of course'.
- Through 'custom and practice'.
The existence or otherwise of an implied term normally becomes an issue only when the relationship between you and your employer has broken down. The courts occasionally imply a term in a contract where an important term has been left out.
Some terms may be implied through custom and practice – the situation when an informed observer would reasonably draw the conclusion that a practice has evolved over time into legally enforceable rights and obligations. For example, it may have become customary for employees to leave early if they work at the weekend. But for this entitlement to become established by custom and practice, it must be 'long-standing, uninterrupted, automatically received, expected and well-known'. (Law at Work)
The mere fact that a practice has been in operation for a particular length of time is not, by itself, enough. The test is that an outside observer would decide the behaviour of the employer and employees is such that they intended the practice to be a contractual right or obligation, with legal force. This can be very difficult to establish.
An important implied term, which applies to every employment contract, is the implied duty not to destroy 'mutual trust and confidence'. This covers both you and your employer, as does the implied duty of 'good faith'. An employee who discloses trade secrets, for example, breaches both of these duties. The duty of good faith also obliges an employer to avoid misleading staff, and to take reasonable steps to provide accurate information where failing to do so could affect their financial situation.
Employers are also held to have an implied duty to keep your confidential data – such as your name, address, salary, National Insurance number – in a secure manner. Any breach of this is also likely to breach data protection legislation, and your right to privacy.
Employers also have an implied duty to avoid causing reasonably foreseeable psychiatric injury.