- 16 minute read
- Last updated: 30th November 2019
By understanding the basic nature of your employee rights and responsibilities within the workplace, not least your contractual and statutory entitlements, this will help you to exercise these rights in the event of any dispute, as well as to meet your own responsibilities to ensure that you do not fall foul of the law yourself.
The following guide looks at employee rights and responsibilities, from the employment contract, including both express and implied terms, to the various statutory rights to which an employee is automatically entitled. Some of the key common law obligations between employer and employee are also considered.
This article covers:
- Employee contractual rights and responsibilities
- Employee statutory rights and responsibilities
- Employee common law rights and responsibilities
- Breaches of employee rights and responsibilities
Both employers and employees have rights and responsibilities towards each other that arise out of their working relationship. These generally comprise contractual rights and that can be agreed between the parties, as well as statutory and common law rights and obligations that arise automatically.
Contractual rights derive from the employee’s contract of employment, although they do not necessarily have to be set out expressly in writing to be enforceable. The agreement can either be verbal or written.
The contract of employment is a legally binding agreement between employer and employee, setting out the terms and conditions governing the working relationship between the parties, including their rights and responsibilities. However, even with a written employment contract, your rights and responsibilities will be made up of both express and implied contractual terms.
Express terms are explicitly agreed between the employer and employee, either verbally or in writing. Typically, these relate to core contractual matters including payment of salary, the right to sick pay, as well as the right to holiday entitlement and to notice of termination of your employment.
In addition to the rights owed to you by your employer, there are also likely to be various express clauses relating to your responsibilities as an employee, such as your duty to undertake certain tasks depending on the nature of your job role and to work a certain number of hours during specific times.
There may even be express contractual provision, for example, preventing you from disclosing any confidential information to a competitor or working for a competitor post-termination for a specified period of time. These are known as non-disclosure clauses and restrictive covenants respectively.
Even with a well-drafted and comprehensive written contract of employment, in practice all employment contracts will also contain implied terms.
Implied terms are not expressly stated, but rather arise by implication in the context in which the contract is entered into, often to reflect the intention of the parties at the point the contract was entered into or because the contract would not make commercial sense without the term being implied.
These types of terms, although unwritten or unspoken, are often crucial for an effective working relationship between the parties. Further, even though these terms are not expressly stated, either in writing or otherwise, they are still contractually binding on both you and your employer.
Typically, terms may be implied into a contract in one of three ways, namely, by fact, by custom and usage or by operation of law:
Implied by fact – these are terms that the parties must have intended to include, even though they are not expressly set out in the contract. The test is either whether the officious bystander would consider inclusion of the term to be so obvious as to go without saying or, alternatively, the term is necessary to give business efficacy to the contract. This could include, for example, a term requiring a HGV driver to hold a valid licence.
Implied by custom or usage – these are terms implied where there is clear evidence that a custom operates within a particular trade or industry, although this practice must be so well recognised and reasonable that the parties must be assumed to have had it in their minds when they entered into the employment contract, for example, an annual Christmas bonus that has been handed out over the last several years.
Implied by operation of the law – these are terms that arise as a legal incident from the nature of the employment relationship, even where the parties did not necessarily intend for such a term to be included. Further, these are terms that can be automatically implied both by statute and by common law, each category of which is discussed in further detail below.
Whilst an employer and employee are free to agree whatever terms they wish, the parties cannot contract out of, or vary, any terms implied by statute. As such, any terms of employment seeking to limit or restrict an employee’s statutory rights will not be enforceable. You will still retain the right prescribed by law.
That said, where your contract of employment gives you greater rights than the minimum provided for by statute, you will become entitled to enforce these more generous rights. By way of example, you may be contractually entitled to a longer period of paid annual leave than the statutory minimum period of holiday, or to additional pay under an occupational health scheme over and above the rate of statutory sick pay.
Some of the main employee rights as prescribed by statute are as follows:
The right to receive the national minimum wage As an employee you are entitled to receive a minimum rate of pay per hour. However, the applicable rate will depend on your age. The current rate for April 2019 for those aged 25 and over is £8.21, decreasing to £4.35 for under 18’s.
The right to a minimum notice period As an employee you will be entitled to the notice stated in your contract of employment or the legal minimum notice period, whichever is the longer. The legal minimum notice required to dismiss an employee is one week if you have been employed between one month and two years, or one week for each complete year of employment up to a maximum of twelve weeks.
The right to paid time off work for holiday As an employee you are entitled to a week’s pay for each week of statutory leave that you take. Most individuals are entitled to 5.6 weeks’ paid holiday a year. A week’s pay is worked out according to the kind of hours you work and how you are paid for these hours, for example, if you work fixed hours, your holiday pay will be based on how much you get for a week’s work, whilst an average will be taken of your last twelve week’s pay if you work variable hours.
The right to sick pay As an employee, where you are absent from work through ill health or injury for four or more consecutive days, including non-working days, you may be eligible for statutory sick pay. However, to qualify, you will need to be earning an average of least £118 per week and to have notified your employer within any specified timeframe under the terms of your contract, or within seven days. Where eligible, SSP will be paid at a rate of £94.25 per week for a period of up to 28 weeks.
The right to maternity, paternity, adoption and/or shared parental leave As an employee, albeit subject to the required minimum length of service where relevant, you may be eligible for both statutory maternity pay and leave, or other similar rights relating to pregnancy or adoption. A qualifying employee can take up to 52 weeks’ maternity leave, together with up to 39 weeks statutory maternity pay, or up to two weeks paternity leave, together with paternity pay.
The right not to be unfairly dismissed Subject to meeting the minimum length of service requirement of two years, where relevant, as an employee you will be protected against unfair dismissal, in other words, being dismissed for a reason, or in a manner, that is considered unfair. By way of example, it would be regarded as automatically unfair to be dismissed because you are pregnant or on maternity leave. In these circumstances a claim for “automatic” unfair dismissal would not require a minimum length of service.
The right to a redundancy payment Again subject to a minimum length of service requirement, where your job no longer exists or, for example, your employer is changing location or closing down, you may be entitled to a statutory redundancy payment, as well as the right not to be unfairly selected for redundancy and to reasonable time off to look for a new job.
The right not to be discriminated against All employees have the right not to be discriminated against within the workplace, or treated less favourably, in relation to a number of protected characteristics, namely disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, as well as sex and sexual orientation. The law protects you against discrimination by reason of any one of these characteristics in the context of your employment terms and conditions, pay and benefits, promotion and transfer opportunities, training and recruitment, as well as dismissal and redundancy.
The right not to be harassed or victimised Employees are also protected from other types of prohibited conduct, in particular, from being harassed or victimised by reason of a protected characteristic. Broadly speaking, “harassment” refers to unlawful conduct related to a protected characteristic, whilst “victimisation” relates to suffering unfair treatment as a consequence of having complained about discrimination or harassment, or having supported someone else in making this type of complaint.
Additional employee rights prescribed by statute include the following:
- To not suffer any unauthorised deductions from wages
- To work no more than 48 hours on average per week
- To be granted a minimum length of rest breaks
- To request flexible working
- To take time off for emergencies
- To be accompanied at a grievance or disciplinary hearing
- To not be treated less favourably for working part-time
- To not be treated unfairly or dismissed for whistleblowing, ie; for reporting wrongdoing in the workplace
In addition to an employee’s statutory rights, there are also certain terms that can be implied by operation of common law because they are a necessary part of the employment contract. Often these terms are so obvious they are assumed. These include reciprocal obligations between the parties, as well as responsibilities that are placed directly on the employee.
In particular, these include the duty of either party to maintain mutual trust and confidence, the duty that an employee will serve his or her employer with good faith and fidelity, and the employer’s duty to provide a safe place of work.
The implied duty to maintain mutual trust and confidence This refers to a duty for either party not to act in such a way that is likely to destroy or seriously damage the relationship of trust and confidence between the parties. In circumstances where an employee alleges serious breach of contract on the part of the employer sufficient to cause them to resign, the implied duty of mutual trust and confidence will often be relied upon in the context of a claim for constructive dismissal, although this duty is also commonly cited against employees who have acted in bad faith.
The implied duty of fidelity This refers to a duty upon the employee to serve their employer with good faith and fidelity. In other words, you must not act against the interests of your employer whilst in their employment. By way of example, you mustn’t misuse an employer’s property nor work in competition with your employer whilst you are still employed by them.
The implied duty to provide a safe place of work This refers to the duty on the employer to protect the health, safety and welfare of their employees, and to do whatever is reasonably practicable to achieve this. In particular, this duty means your employer must ensure that you are protected from anything that may cause you harm, and for any health risks that could arise within your working environment to be controlled.
In circumstances where an employer breaches your rights or, alternatively, you have been accused of breaching your responsibilities as an employee, this may result in an employment dispute.
Employment disputes can often be resolved informally through verbal communication or, failing that, by way of any formal written disciplinary or grievance procedures. These will either be contained within your contract of employment or set out with any staff handbook or on the HR intranet site.
However, where a dispute between you and your employer cannot otherwise be resolved, the matter may result in legal proceedings, typically before the employment tribunal or, in some cases, before the County Court or High Court.
Where you are contemplating bringing legal proceedings, or have been threatened with legal action by your employer, it is always best to seek early expert advice from an employment law specialist, not least because when bringing a tribunal claim, there are strict time limits, in some cases, as little as three months.
It is important to note that your legal rights and entitlements at work can differ depending on whether you are classed as an “employee” or “worker”. Although workers will be entitled to some of the rights set out above, employees are entitled to all of these rights. However, the issue of employment status is beyond the scope of this article and expert advice should be sought in the event of uncertainty.
DavidsonMorris are experienced employment law specialists. Our lawyers are on hand to provide advice and guidance to employees concerned about their rights and at work.
If you have a question about a specific employment law issue, contact us.