Employment Law: What are my rights?
The growth of non-traditional working relationships might have left you feeling confused about your employment status and, consequently, your rights. But whether you are employed on a full-time, part-time, temporary or permanent basis, everybody has the right to be treated fairly in the workplace and is protected by employment law.
Most working arrangements fit into the following three categories: –
Your rights will vary dependant on what category you might fall into – although the self-employed have very few employment rights at all. You may think you know which category applies to you, but if you have any issues at work, it is best to speak with a solicitor to confirm what rights you have.
Employees have the most rights. If you are an employee, you would usually have a contract of employment that outlines terms such as pay, annual leave and working hours. Your employment rights include holiday, maternity and paternity pay, the right to request a flexible working arrangement, the right not to be discriminated against and the right not to be dismissed unfairly.
Workers have a more limited range of rights, although this still includes holiday pay and a right not to be discriminated against. While it is likely that you will have a contract, the terms will vary widely depending on what type of working relationship you are in.
Examples of individuals who would be classed as a worker are:-
- Zero hours workers;
- Casual workers;
- Agency workers;
- Seasonal workers;
How does Employment Law protect me?
Employment law protects all individuals from being discriminated against in the workplace. The Equality Act 2010 sets out provisions that deal with discrimination on the grounds of age, race, sex, sexual orientation, and religion. These are known as protected characteristics. The Act protects you against discrimination in any form, be that direct; indirect; harassment; or victimisation.
Age:There are many different ways in which you can be discriminated in the workplace because of your age. The scrapping of the Default Retirement Age has added to the complexity in this area, and along with the fact that direct age discrimination can be justified in certain circumstances, it is critical that you speak with an employment lawyer should you have concerns that you are being treated unfairly due to your age.
Race: It is illegal for you to be treated less favourably because of your race, colour, nationality or ethnic or national group. This is not limited to your race; you cannot be discriminated against because of your partner’s race either. If this happens, this is known as associative discrimination.
Sex:This covers discrimination due to gender, gender reassignment and also makes it unlawful to discriminate against those who are married or in civil partnerships.
Sexual Orientation: Employment law protects lesbians, gay men, bisexuals and heterosexuals from discrimination as a result of their sexual orientation perceived or actual, or the sexual orientation of friends and family.
Religion:The definition of religion in the act is very broad. It covers both religion and beliefs and covers non-believers too. Direct discrimination covers acts that have been taken because of your partner’s religion.
Types of discrimination
Direct discrimination:Where you are treated less favourably due to a protected characteristic. Less favourably is sometimes evaluated by using a named or hypothetical comparator, but sometimes it will be considered objectively dependant on which characteristic is being considered.
Indirect discrimination:Where a provision, criterion or practice would put someone with a protected characteristic at a disadvantage. Depending on the characteristic, indirect discrimination might be justifiable if it is a proportionate means of achieving a legitimate aim.
Harassment:Conduct that infringes your dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment. It does not need to be intentional, nor does it need to be directed specifically at you.
Victimisation:Where you are treated less favourably because you have, or you intend to, claim under the legislation.
What if I am discriminated against because of a disability?
It is also illegal to discriminate against you on the grounds of disability. As with the other protected characteristics the rules surrounding this can be found in the Equality Act 2010. However, the Act is not easy to follow and has a four-part definition of ‘disability’, six ways in which discrimination may arise and is complicated by the concepts of perceived and associative disability.
If you fulfil the definition of disabled or care for someone who does, then you are protected if you are treated less favourably as a consequence.
Employment law protects you if you are physically or mentally impaired, but also covers sensory impairments. These difficulties must have a significant and long-term effect on your ability to carry out your everyday activities. There are also several conditions that are automatically covered, without the need to consider these criteria, such as cancer, HIV and multiple sclerosis. If you are disabled, an employer must change their procedures and remove barriers so that you can apply for, and undertake, work in the same way as someone who does not suffer from a disability. They can do this is by making reasonable adjustments to your working environment. That might be a change in the way things are done, a change in the premises and/or the provision of extra aids or support.
Pregnancy and Maternity discrimination
Employment law also protects you against discrimination if you are pregnant, or on maternity leave. Pregnancy discrimination is where you are treated unfairly on the grounds of your pregnancy or pregnancy-related illness. This is through the protected period from conception to the end of statutory maternity leave. Pregnancy discrimination can only be in the form of direct discrimination.
Maternity discrimination is where you are treated unfairly as a result of your maternity leave, or request for maternity leave. The protected period here depends on whether you have any rights to ordinary or extended maternity leave. If you do the protected period does not end until that does, or when you return to work. If you have no rights to maternity leave, the protected period ends two weeks after the pregnancy ends.
Employment law also provides some additional rights to you if you are pregnant or on maternity leave. Importantly it is automatically deemed unfair if you are dismissed or selected for redundancy where the principal reason is connected to your maternity leave.
What should I do if I think I am being subjected to discrimination in the workplace?
Employment law surrounding your right not to be discriminated against in the workplace is complex and differs between protected characteristics. To be able to understand whether your treatment at work has been affected by your employer’s attitude to your age, race, sex, sexual orientation, religion, disability or pregnancy you should consult a solicitor. It is advisable to do this as soon as possible, so that you are clear about what rights you have and whether your treatment breaches the protections established by the Equality Act 2010.
If you have been discriminated against a solicitor will be able to guide you through the steps you can take to raise the issue with your employer, and if that does not resolve matters, can advise you on your prospects of success at a tribunal hearing.
Rights on Redundancy and Settlement agreements.
Employment law is very strict on what constitutes redundancy, and if your employer does not follow the prescribed process, including during the consultation and selection stages, your dismissal for redundancy may be deemed to be unfair. Even if due process has been followed, there may be issues surrounding the fairness of your selection and whether this amounts to discrimination. Redundancy rights apply only to employees, not workers, but it is always worth speaking with a solicitor to see whether there are any challenges to be made.
Often during a redundancy process, you will be asked to sign a settlement agreement. These usually ask you to waive your rights to bring legal claims, such as unfair dismissal or workplace discrimination in exchange for a sum of money. It is a legally binding contract, and your employer must make sure you receive independent legal advice before you sign it, and it is very important that you do. Employment law is there to protect you and signing away your rights without proper consideration could have significant consequences.
Unfair and wrongful dismissal
This is another area of employment law which offers protection to employees only. If you have been dismissed, or have been threatened with dismissal, then you should contact a solicitor to discuss whether you have a claim to make.
Wrongful dismissal is where your employer has not followed the terms of your contract when dismissing you. This is a breach of contract, and it may mean that any obligations imposed on you by the contract, post-termination of employment, will not be enforceable. This might be to your benefit if your contract included things such as restrictive covenants (conditions imposed on you to prevent you from going to work with a competitor for a certain period or prohibit you contacting clients
Unfair dismissal, on the other hand, is where your employer’s reason for dismissal, or the process used to do it, is unfair. There are some reasons for dismissal that are automatically deemed to be unfair, such as those relating to pregnancy or maternity leave, or whistleblowing. You do not have to have a minimum period of employment to claim automatic unfair dismissal.
All other claims, however, can only be made if you have a qualifying length of service. For those employed after 6th April 2012 that period is two years.
Constructive dismissal can be claimed where you resign from your post because your employer has acted in a way which amounts to a fundamental breach of contract.
I think my employer has breached by employment rights – how do I make a claim?
Employment law is complex, and it is always advisable to speak to a solicitor if you are having any issues with your employer. They will be able to consider your employment status, what rights you have as a consequence, and if your employer is breaching those rights. They can then advise on the best way to rectify that.
Although a claim to the Employment Tribunal is the ultimate remedy, other processes can be used to help resolve the matter with your employer. All employers require to have a disciplinary and grievance procedure, which is compliant with Acas’ Code of Practice, and an experienced employment lawyer will be able to assist you through the process. If that does not resolve matters, and a claim to the tribunal is necessary, your solicitor will ensure you comply with all the procedural steps, so your claim cannot be challenged on that basis.