Employment Problems

LBC’s lawyer, barrister Daniel Barnett of Outer Temple Chambers, answers your questions on a wide range of legal issues. Listen to him with Clive Bull on Wednesday nights at 9pm.

Please read the disclaimer at the bottom of this page carefully.

What rights do you have as an employee?

Contract: If you’re an employee, you have the right to receive a statement of terms and conditions of employment from your employer once you’ve been employed for one month or more. This should include basic information about your pay, job title, holiday, hours, notice, and place of work.

Notice: You have the right to notice of dismissal – one week’s notice if you’ve worked between one month and two years. After that, you are entitled to a week’s notice for each continuous year of service, up to a maximum of 12 years’ service.

National Minimum Wage: You are entitled to receive at least the National Minimum Wage – this applies to all employees and workers over the compulsory school leaving age. The amount you’re entitled to depends on your age. The amount changes annually.

Holiday: If you’re a full-time employee or worker, you’re entitled to 5.6 weeks’ annual leave (equivalent to 28 days a year if you work 5 days a week). This includes the eight public holidays. This will be pro-rata’d if you’re part time. It also may be contractually increased, but never decreased. You should give your employer at least twice the notice of the time off you’re requesting to take. For example, if you want to take four days off, you need to give your employer eight days’ notice. Your employer is entitled to refuse your holiday request as long as they give you the same number days’ notice as the time off you wish to take as long as this doesn’t prevent you from taking your holiday entitlement for the year.

Sickness: Employers must pay statutory sick pay at the very minimum. This benefit kicks in on the fourth day of absence due to ill health. Your contract might provide for contractual sick pay.   

What is my employment status?

Employee – You are engaged to do work under a contract of employment – this doesn’t have to be written down, because it could be implied by your working relationship.

Worker – You have a contract to do work personally, you receive payment, you have a limited right to subcontract the work, you must do the work and cannot cancel, you have to be offered the work (as long as the contract lasts), and you are not doing the work through a limited company.

Self-Employed – you do the work through a limited company or as a sole trader, you don’t have mutuality of obligation with the company, you don’t have to provide a personal service – ie. You can send a replacement, and you are in control of your work. You are not entitled to holiday or sick pay. 

When do my employment rights kick in?

To claim unfair dismissal or constructive dismissal you need two years’ continuous service. But, there are some exceptions to this rule, for example, if you’ve been discriminated against on the basis of a protected characteristic: sex, disability, race, sexual orientation, age, marriage and civil partnership, religion or belief, gender reassignment, pregnancy and maternity, you don’t need to have the requisite service. The same goes if you’ve been dismissed for whistle blowing or raising a concern about health and safety.

What do I do if I have a problem at work?

You can try to resolve the matter informally by having a chat with your line manager, or writing a letter of concern. It’s usually better to try to resolve workplace disputes as early as possible. If you feel you need to escalate the problem, then raising a formal grievance is an option. Your company may have a policy covering this. If not, look at Acas for information on how they should be conducted. Key points are:
- put your concerns in writing
- you have the right to be accompanied by a colleague or trade union representative at a formal meeting, or hearing
- your employer is under a legal duty to take your grievance seriously and investigate, hold a hearing, and allow you an appeal if requested

If you feel your position at work is untenable, then you could resign and claim constructive dismissal (you need two years’ service to claim this – see above).

What is Acas and what do they do?

Acas provides an early conciliation service. Before you make a claim, you need to contact Acas and see if there is the possibility of settling before you make your claim.  www.acas.org.uk Acas Helpline: 0300 123 1100. Acas also provide guidelines for how things like grievances and disciplinaries should be conducted.

What counts as discrimination and what is a protected characteristic?

There are nine protected characteristics for which you are legally prevented from suffering discrimination because of or suffering a detriment due to:

• sex
• disability
• race
• sexual orientation
• age
• marriage and civil partnership status
• religion or belief
• gender reassignment
• pregnancy and maternity

Protected Disclosures – Whistleblowing

Whistleblowers report concerns that are in the public interest. They automatically receive protection from discrimination as a result of making the protected disclosure. Public concern at work - The Whistleblowing charity is a useful resource if you’re concerned about whistleblowing and any potential repercussions.

What rights to I have as a parent?

All women qualify for 52 weeks’ statutory maternity leave regardless of how long they’ve worked for a company. Statutory Maternity Pay (SMP) is payable for up to 39 week if you’re eligible. If you’re not eligible for SMP, you might be eligible for Maternity Allowance (MA).  You can take 10 keeping in touch days whilst on maternity leave which doesn’t affect your SMP. You continue to accrue annual leave, receive pay rises, and return to your job.

As the partner of a woman who is having a baby you might be eligible for one or two weeks’ paid Paternity Leave.

As parents, you may be eligible to opt to share the leave and opt-in for shared parental leave. To start SPL, the mother must curtail her maternity leave.

More Information

If you are an employee, you will find more information about how to bring a claim and conduct litigation at www.etclaims.co.uk.  If you are an HR Professional or employer with existing knowledge of employment law, Daniel Barnett provides a regular employment law case update service which you can sign up to. 

Disclaimer
This page provides links to help with legal problems.  They are third party organisations and neither Global Radio nor Daniel Barnett are responsible for any advice given by them.   If you obtain or listen to legal advice during the LBC Legal Hour, please bear in mind that all advice given is of a general nature only and it is important that you check it – either with a CAB, a Law Centre, or a solicitor - before relying on it.  The nature of the radio show format means that the advice is off-the-cuff and is given without taking the detailed level of instructions which a lawyer would normally take or taking time for reflection; accordingly neither Global Radio nor Daniel Barnett accept responsibility for reliance on any advice, even if it is mistaken or negligent.  All legal advice during the radio show is subject to the terms in Daniel Barnett’s client care letter, a copy of which can be obtained on request and which will be emailed to all callers into the LBC legal hour.