There may come a time at work when you need to check the precise terms of your contract of employment. This could be because a dispute has arisen between you and your employer, you want to check your entitlements because you are threatened with redundancy or your employer is trying to change your terms for example, in relation to working conditions, hours or pay.
A contract of employment sets out the rights and obligations of both the employee and their employer, referred to as the “terms” of employment. However, it is a common misconception that all terms of employment have to be written down in a formal document. Terms may be agreed orally, and not committed to writing but, they will still be legally binding on the parties.
If you’ve never been given a written copy of your contract of employment, don’t worry – you will still have a contract, but its terms will be implied and/or agreed orally. However, for the sake of clarity, it is always preferable to have a written contract of employment. Ideally, your employer should provide this, but if it is not forthcoming within a few weeks of starting employment, you should ask for a written contract to be given to you.
At the very least, the law requires that all employers provide written details of the main terms of employment to employees within two months of them taking up their position. While this may not contain absolutely all terms of employment, it is certainly fairly comprehensive and better than nothing.
How do I know if I am an employee or worker?
Staff may fall into different legal categories and this will affect the extent of the legal protection they enjoy. There are significant differences between the legal rights of those who are classed as employees and those who are classed as workers. For example, a worker cannot claim unfair dismissal and is not entitled to a statutory redundancy payment. They are however entitled to the national minimum wage and a minimum amount of paid annual leave.
So, how do you know which you are? Ultimately, only the employment tribunal can answer what can be a tricky legal question. However, there are some pointers which may help you clarify which class of staff you fall into.
You’re an employee if:
- you have a contract of employment
- you are employed to do the work personally i.e. you cannot send a substitute to do your work
- your employer is obliged to provide you with work and you are obliged to do that work in return for a salary
- your employer is in charge of what work you do and how you should go about it
You’re a worker if:
- you have a contract to provide a service and you have to do the work yourself
- your employer isn’t a client or customer of a business that you run
The terms of your employment
A contract of employment contains three types of terms:
- express terms
- implied terms
- statutory rights
Not all of these terms will be written down and you may not even be aware of some of them.
As the name suggests, express terms are those expressly agreed between you and your employer. These are likely (but not necessarily) to include:
- how much you get paid, including any overtime, holiday pay or bonus pay
- your hours of work, including overtime
- any other benefits such as pension entitlements
- your holiday entitlement
- any sick pay entitlement
- the amount of notice required by you or your employer to end the employment
Can you have express terms without a written contract of employment?
Yes, all (or any of) the express terms of your employment won’t necessarily have been set out in a formal, written employment contract. You may find some of your express terms written down in a subsidiary document, a written statement, a letter or email from your employer, or in the staff handbook. It may be that your contract contains terms that are set down in a “collective agreement” negotiated between your employer and your trade union.
However, the express terms of your employment might simply have been agreed between you and your employer verbally, in a conversation. These are express terms and are still enforceable if your employer doesn’t honour them. However, without any form of evidence of what was actually agreed, it is possible that your employer will contest the terms you say have been agreed.
If you have never had a written a contract of employment, take some time to think about any relevant conversations you have had with your boss and collate any emails or other documents which may be useful to evidence what was agreed and/or which you think may form part of your contract of employment.
In addition to anything you may have expressly agreed with your employer, the law also implies certain terms into your contract of employment. You will not be able to read these terms in your employment contract, they are established by case law and will be “read –in” to your contract by a tribunal or court if necessary.
Implied terms impose obligations on both employers and employees. Some significant implied terms which apply to employers are:
- to provide a safe place for you to work
- not to ask you to do anything illegal
- to deal with any grievance you raise in a timely manner
As an employee, the implied terms in your contract mean you have an obligation to:
- comply with any reasonable instructions from your employer
- co-operate with your employer
- not disclose confidential information
- not compete in business against your employer while still working for them
There is sometimes a mistaken belief that just because you have worked in a certain way for a significant period of time, there is an implied term entitling you to work that way. While terms can become implied over time, it is not that easy for them to do so.
In addition, if there is an express term that says differently, the express term wins. For example, if for the last two years you have worked for 25 hours a week, but your contract expressly says you work 30 hours, then you are obliged to work 30 hours a week unless your boss has specifically agreed to change your hours.
Statutory rights without contract of employment
You and your employer can agree almost any express terms you like but neither of you can agree to a term that leaves you worse off than is provided for by the law (statute). In other words, any contract of employment has to comply with your statutory rights.
That means employees always have the right to:
- a minimum amount of paid holiday
- minimum rest breaks
- at least the National Minimum Wage
- itemised pay statements
- equal pay in comparison to someone of the opposite gender doing the same job
- minimum pension contributions
- maternity and other parental leave
- redundancy pay
- not to be unfairly dismissed
- protection against discrimination and harassment
What are your rights relating to notice of dismissal?
If you don’t have any express terms in respect of dismissal, then your statutory rights to notice are as follows:
- A minimum of one weeks’ notice of dismissal if you have worked continuously for your employer for one month, but less than two years.
- After two years’ employment, a further one week’s notice is required for each whole year of continuous employment up to 12 weeks.
What are my maternity rights?
Female employees have a number of maternity rights:
- You cannot be dismissed for being pregnant, even if you have been employed for less than two years by your current employer
- You are entitled to a total of 52 weeks maternity leave
- You have the right to paid time off for antenatal care
- You may also have the right to up to 39 weeks of maternity pay, but only if you have worked for your employer for 26 weeks or more at the date of 15 weeks before the week the baby is due
- You have the right to return to work on the same contractual terms with your seniority preserved after maternity leave
Am I protected from discrimination without a contract of employment?
Whether or not you are an employee or worker, you have a right not to be discriminated against (whether directly or indirectly) on grounds of age, disability, sex, sexual orientation, marital status, the fact you are undergoing gender reassignment, pregnancy or maternity, race and religion or belief.
You are also protected against victimisation because you have brought a complaint about discrimination or given evidence in a complaint brought by another employee
Some of your statutory rights only come into effect after you’ve worked for an employer for a certain continuous period of time. For more information, please see our article on when certain employment rights start.
If you have been employed by the same employer on a series of short-term contracts these can usually be added together to provide ‘continuity of employment’.