EMPLOYMENT LEGISLATION

INDIVIDUAL RIGHTS OF EMPLOYEES: A GUIDE FOR EMPLOYERS AND EMPLOYEES - PL 716 (REV 11)

Other statutory employment rights

Asserting a statutory employment right

Employees may complain to an employment tribunal if they are dismissed (including selection for redundancy when others in similar circumstances are not selected) for bringing proceedings against their employer to enforce certain rights, or for alleging the employer has infringed those rights. This protection applies to all employees, regardless of their length of service.

To benefit, the employee need not necessarily have specified the right, so long as it was reasonably clear to the employer what the right was.

Provided they act in good faith, employees are protected regardless of whether they qualified for the right they sought to assert and regardless of whether that right had in fact been infringed. Employees can claim protection if they are dismissed after asserting rights relating to:

• written statement of employment particulars;
• itemised pay statement;
• for trade union duties and activities or training;
• unlawful deductions from pay;
• not having to make unauthorised payments to employer;
• guarantee payments;
• opting out of shop or betting work on Sunday;
• detriment in cases about: health and safety, Sunday working, working time, trusteeship of employee pension schemes, employee representatives, time off for study and training, protected disclosures, maternity, parental, paternity, adoption or domestic leave, or grounds related to trade union membership or activities;
• flexible working
• remuneration during suspension on medical grounds;
• time off: for public duties, to look for work or make arrangements for training prior to redundancy, for antenatal care, for dependants, for employee pension scheme trustee or director's duties or training, for study or training for young people, for employee representatives;
• minimum notice terminating employment;
• deduction of unauthorised or excessive union subscriptions;
• employer paying contribution to a union's political fund;
• consultation about redundancy or business transfer;
• working time, rest periods, breaks and annual leave;

Similar protection is provided for employees who are dismissed for certain actions under the Transnational Information and Consultation of Employees Regulations 1999, the Part-time Workers Regulations 2000, the Information and Consultation of Employees Regulations 2004, the European Public Limited-Liability Company Regulations 2004 or because they qualify for:

• the national minimum wage;
• working families tax credit.

or because any action is taken (or even proposed to be taken) to enforce any of these rights.

Trade union membership and activities, and non-membership of a union

Employees have the right to join or not join a trade union of their choice. Their employer may not dismiss them, select them for redundancy or make them suffer detriment for being or proposing to become a union member, nor for taking part in the union's activities at an appropriate time. They are similarly protected if they choose not to belong to a union or refuse to join one.

Dismissals which infringe these rights may be taken to an employment tribunal regardless of the employee's length of service. Employees who claim to have been unfairly dismissed in this way (except those complaining of unfair selection for redundancy) can also apply to the tribunal for an order of interim relief (which requires the employer to continue their contract of employment or to re-employ them pending the final outcome of the case).

For further information on these rights, see the documents Union membership: rights of members and non-members (PL871) and Unfairly dismissed? (PL712).

Taking action on health and safety grounds

An employee may not be dismissed, selected for redundancy (when others in similar circumstances are not selected) or subjected to any detrimental action for taking certain types of action on health and safety grounds. These rights apply to all employees, regardless of their length of service, if they:

• carry out or propose to carry out activities which their employer has designated them to carry out in connection with preventing or reducing risks to health and safety at work; or
• perform or propose to perform functions they have as official or employer-acknowledged health and safety representatives or committee members; or
• bring to their employer's attention by reasonable means - and in the absence of a representative or committee with whom it would be reasonably practicable for them to raise the matter - a concern about circumstances at work which they reasonably believe are harmful to health and safety;
• in the event of danger which they reasonably believe to be serious and imminent and which they could not reasonably be expected to avert, leave or propose to leave the workplace or any dangerous part of it, or (while the danger continues) refuse to return; or
• in circumstances of danger which they reasonably believe to be serious and imminent, take or propose to take appropriate steps to protect themselves or others.

All employees have the right to complain to an employment tribunal if any of these rights are infringed. Where health and safety representatives or committee members or those designated to carry out workplace health and safety activities (which could include, for example, first aiders) are dismissed or selected for redundancy, they are entitled to compensation without a statutory limit. In other cases of dismissal or selection for redundancy on health and safety grounds, the remedies will be subject to the same limits as under the ordinary unfair dismissal provisions. For details see either the document Fair and Unfair Dismissal (PL714) or Unfairly Dismissed? (PL712).

Where the employee has been subjected to some other detriment relating to taking action on health and safety grounds, the employment tribunal will award the compensation it considers just and equitable in all the circumstances, taking into account the particular infringement and any loss incurred.

Suspension from work on medical grounds

Certain health and safety regulations require employees to be suspended from their normal work on medical grounds, when their health would be endangered if they continued to be exposed to a substance specified in the regulations. These provisions cover exposure to ionising radiation, lead and some other hazards. 

Further details can be found in the document Suspension from work on medical or maternity grounds (PL705)

Transfer of a business or undertaking

The Transfer of Undertakings (Protection of Employment) Regulations 1981 apply to the transfer of an undertaking, or part of an undertaking, to a new employer (for example, as the result of a sale). The employees automatically become employees of the new employer as if their contracts of employment were originally made with the new employer; and the new employer takes over all employment liabilities of the old employer (except criminal liabilities and occupational pension rights).

Employees are entitled to object to their contract being transferred to the new employer but, in doing so, normally lose the right to claim there was a dismissal unless they can show that the transfer would have involved a substantial and detrimental change in working conditions.

If either the new or the old employer dismisses an employee solely or mainly because of the transfer of an undertaking or part of it, the dismissal is considered unfair.

However, if the main reason for dismissal, by either employer, is an economic, technical or organisational one entailing changes in the workforce, an employment tribunal may consider it to be fair. That is likely if the tribunal also finds that the employer acted reasonably in treating this reason as sufficient to justify dismissal.

Further information is available in the document Transfers of undertakings: a guide to the regulations (PL699).

Sunday shop and betting work

Shop workers have the right not to be dismissed, selected for redundancy (when others in similar circumstances are not selected) or subjected to other detrimental action for refusing or proposing to refuse to work on Sundays.

There are similar rights for betting workers - that is broadly all employees at licensed betting offices, and those employees at horse race courses or licensed tracks whose work involves dealing with betting transactions.

For further information, see the document Sunday shop and betting work: employees' rights (PL960).

Working time

The Working Time Regulations 1998 provide rights to:

• A limit of an average 48 hours a week on the period a worker can be required to work, although individuals may choose to work longer;

• Four weeks’ paid leave a year;
• 11 consecutive hours’ rest in any 24-hour period;
• An in-work rest break if the working day is longer than six hours;
• One day off each week;
• A limit on the normal working hours of night workers to an average eight hours in any 24-hour period, and an entitlement for night workers to receive regular health assessments.

The regulations apply not only to employees but also to workers, which includes the majority of agency workers and freelancers.  The regulations were amended, with effect from 1 August 2003, to extend working time measures in full to all non mobile workers in road, sea, inland waterways and lake transport, to all workers in the railway and offshore sectors, and to all workers in aviation who are not covered by the sectoral Aviation Directive. The regulations will also apply to junior doctors from 1 August 2004.

Mobile workers in road transport have more limited protections. Those subject to European drivers' hours rules 3820/85 are entitled to four weeks paid annual leave and health assessments if a night worker from 1 August 2003. Mobile workers not covered by European drivers' hours rules will be entitled to an average 48 hours per week, four weeks paid holiday, health assessments if a night worker and adequate rest.

The regulations were previously amended, with effect from 6 April 2003, to provide enhanced rights for adolescent workers. Young workers (those over the minimum school leaving age but under 18) are entitled to 12 consecutive hours rest between each working day, two days' weekly rest and a 30-minute in-work rest break when working longer than four and a half hours, plus four weeks paid annual leave. Following a period of public consultation, the following changes for young workers took effect in 2003.

• Working time to be limited to eight hours a day and 40 hours a week 
• Prohibition of night-work between 10pm and 6am or between 11pm and 7am
• Derogations from the working time limit and night-work prohibition permitted in specific circumstances, and in the case of the night-work prohibition, specific sectors

Workers may complain to an employment tribunal if they are being denied rest periods, breaks or the paid annual leave entitlements.  The limits and health assessments (if a night worker) are enforced by the Health and Safety Executive, local authority environmental health departments, the Civil Aviation Authority (CAA) and the Vehicle and Operator Services Agency (VOSA).

Employees may complain to an employment tribunal of unfair dismissal, regardless of their length of service, if they are dismissed for exercising rights under these regulations; and workers who are not employees may complain that they have suffered a detriment if their contracts are terminated for this reason.  Both employees and workers who are not employees are also protected from other detrimental action or deliberate inaction by their employer.

Further details can be found in the document Your guide to the working time regulations.

Protected disclosures

Workers who 'blow the whistle' on wrongdoing in the workplace can complain to an employment tribunal if they are dismissed or victimised for doing so. An employee's dismissal (or selection for redundancy) will be unfair if it is wholly or mainly for making a protected disclosure within the meaning of Part IVA of the Employment Rights Act 1996 (inserted by the Public Interest Disclosure Act 1998). Workers who are not employees can complain that they have suffered a detriment if their contracts are terminated for making such a disclosure, with compensation awarded on the same basis as for unfair dismissal. Both employees and other workers are also protected from other detriment by their employer.

For further information, see the document Disclosures in the public interest: protections for workers who 'blow the whistle' (PL502).

Disciplinary and grievance hearings

Workers are entitled to be accompanied at certain disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, within specified limits, if their chosen companion is unavailable at the time the employer proposes.

Workers have the right to take paid time off during working hours to accompany fellow workers employed by the same employer.

These rights apply to workers including agency workers and home workers, though not to those who are in business solely on their own account. 

For further information, see Acas's code of practice Disciplinary and grievance procedures.

An employment tribunal will consider a worker has been unfairly dismissed, regardless of his or her age or length of service, if the dismissal was for exercising or seeking to exercise the right to be accompanied, or for accompanying or seeking to accompany another worker; nor may an employer subject workers to any other detrimental treatment on these grounds.

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

The Regulations aim to ensure that part-time workers are not treated less favourably than comparable full-timers, unless the less favourable treatment can be justified on objective grounds. Principally, this means they should:

• receive the same rates of pay (including overtime pay, once they have worked normal full-time hours);
• not be treated less favourably for contractual sick pay or maternity pay purposes, or discriminated against over access to pension schemes or pension scheme benefits;
• not be excluded from training simply because they work part-time;
• receive holiday entitlement pro rata to comparable full-timers;
• have any career break schemes, contractual maternity leave and parental leave made available to them in the same way as for full-time workers; and
• not be treated less favourably in the criteria for selecting workers for redundancy.

Part-time workers who believe their treatment infringes these regulations have the right to make a request in writing for a written statement, within 21 days, giving the employer's reasons for the treatment.

Employees will be held to be unfairly dismissed (or selected for redundancy), regardless of age or length of service, if the main reason for the dismissal is that:

• they exercised or sought to enforce rights under the Regulations, refused to forgo them or alleged that the employer had infringed them; or
• they gave evidence or information in connection with proceedings brought by an employee under the Regulations; or
• the employer believed the employee intended to do any of these things.

Though only employees may complain of unfair dismissal, workers who are not employees may complain to an employment tribunal that they have suffered a detriment if their contracts are terminated for any of these reasons, compensation being awarded on the same basis as for unfair dismissal. Both employees and other workers are also protected from other detrimental treatment for these reasons.

Click here for further information.

Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 say that fixed-term employees should not be treated less favourably than comparable permanent employees on the grounds they are fixed-term employees, unless this is objectively justified. Any such less favourable treatment must be actually necessary to achieve a legitimate objective and must also be an appropriate way to achieve it. Employees who believe their rights are infringed under these Regulations may present their case to an employment tribunal.

They apply to employees on contracts that last for a specified period of time or will end when a specified task has been completed or a specified event does or does not happen. Examples include employees covering for maternity leave and peaks in demand and employees on task contracts such as setting up a database. An example where less favourable treatment may be justified could be the disproportionate cost of giving a company car to an employee on a short fixed-term contract just because the comparator has one. 

Less favourable treatment may be assessed in one or two ways: either each of the fixed-term employee’s terms and conditions of employment should not be less favourable than the equivalent treatment given to their comparator or the fixed-term employee’s overall package of conditions should not be less favourable. 

Fixed-term employees have a right to ask for a written statement setting out the reasons for less favourable treatment if they believe that this may have occurred. The employer must provide this statement within 21 days.

Use of successive fixed-term contracts is limited to four years, unless further fixed-term contracts are justified on objective grounds. However, it will be possible for employers and employees to increase or decrease this period or agree a different way to limit the use of successive fixed-term contracts via collective or workforce agreements. Service accumulated from 10 July 2002 counts towards this four-year limit. If a fixed-term contract is renewed after the four-year period, it is treated as a contract for an indefinite period (unless the use of a fixed-term contract is objectively justified). Fixed-term employees have a right to ask their employer for a written statement confirming that their contract is permanent or setting out objective reasons for the use of a fixed-term contract beyond the four-year period. The employer must provide this statement within 21 days. 

Any redundancy waiver that is included in a fixed-term contract which is agreed, extended or renewed after 1 October 2002 will be invalid. 

Fixed-term employees should receive information on permanent vacancies in their organisation. 

Dismissal relating to jury service

From 6 April 2005, employees will be unfairly dismissed (or selected for redundancy) if the reason, or the principal reason, is that they have been summoned for jury service or have been absent from work on jury service. There is no qualifying period of service or upper age limit for employees who wish to complain that they have been dismissed for these reasons. This protection will not apply, however, if the employer shows that the employee's absence will cause substantial injury to his business and makes this known to the employee, who nevertheless unreasonably refuses, or fails, to apply to be excused from jury service or to have his jury service deferred.

Employees are also protected against detrimental action or deliberate inaction by their employer because they have been summoned for jury service or have been absent from work on jury service. However, the protection does not cover failure to pay remuneration during absence on jury service unless the employee's contract of employment entitles him to be paid during such an absence.

Rehabilitation of offenders

Broadly speaking, anyone who has been convicted of a criminal offence and who is not convicted of a further offence during a specified period (the 'rehabilitation period') becomes a 'rehabilitated person' and the conviction becomes spent. This means it does not have to be declared for most purposes, such as applying for a job.

The rehabilitation period depends on the sentence and runs from the date of conviction. A conviction resulting in a prison sentence of more than 30 months can never become spent.

Under the Rehabilitation of Offenders Act 1974, a spent conviction - or failure to disclose a spent conviction or any circumstances connected with it - is not a proper ground for dismissing or excluding a person from any office, profession, occupation or employment or for prejudicing a person in any way in any occupation or employment. However, there are some exceptions to the Act (which relate broadly to work with children, the sick, disabled people and the administration of justice). Where an exception applies, an individual must, if asked, disclose all convictions including spent ones.

Further information about these provisions can be found in the Home Office leaflet Wiping the slate clean.

Employment Relations home page  |  Search  |  Crown Copyright  |  Disclaimer
Top of page

Previous page  |  Contents  |  Next page

Last updated 23 June 2005