Sending e mails and using the internet is now commonplace at work. However, the electronic revolution has taken some organizations by surprise. You need to think about a policy for the use of email and the internet that establishes the right balance between business and personal use. You also need to consider the monitoring of your electronic communications and the laws that apply - such as the Data Protection Act.
The EDT is the date on which a contract of employment comes to an end and has importance in calculating the length of continuous service and the correct time limit for making a claim of Unfair Dismissal. The EDT is either:
- if a contract is terminated with notice, then it is the date on which notice expires;
- if a contract is terminated without notice by employer or employee, then it is the date the dismissal/resignation took effect (this does not apply if the contract is terminated by the employer without giving proper Statutory Minimum Notice);
- in the instance of termination of a Fixed Term contract, the date the contract expires.
For the purposes of calculating whether an employee has sufficient continuous service to claim Unfair Dismissal, the EDT is that detailed above, or,
- where an employer has given less notice that that required in law, the EDT is the date that the contract would end, if proper notice had been given;
- where an employee resigns (i.e. on the grounds of Constructive Dismissal) without notice, then the EDT is the date that the contract would have expired if the employer had given Statutory Minimum Notice.
An employee is a person who works under a Contract of Employment.
An employers association is designed to provide services to Employers to enable them to effectively regulate the employment relationship with their employees or their trade union representatives. The Trade Union and Labour Relations (Northern Ireland) Order 1992 defines an Employers Association as an organisation which either:
- is made up of employers or individual owners whose principal purposes include the regulation of relations between employers and workers or trade unions; or
- is made up of constituent or affiliated organisations, or representatives of those organisations, whose principle purposes include the regulation of relations between employers and workers or trade unions, or the regulation of relations between its constituent or affiliated organisations.
The publication below applies to GB only but is relevant to employers in Northern Ireland
The Government Equalities Office in GB has published guidance for employers on recruiting and retaining transgender employees. this guidance, produced in partnership with Inclusive Employers, is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. it is also a useful guide for the managers of trans staff and for trans staff themselves. It also aims to help employers comply with the law in GB, although the principles could be applied throughout the UK.
NOTE: The Equality Act 2010 does not apply to Northern Ireland. Gender reassignment protection in employment is provided by the (Gender Reassignment) Regulations (Northern Ireland) 1999.
The Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 and more recently the Conduct of Employment Agencies and Employment Businesses Regulations (NI) 2005 introduced rules to regulate the conduct of Employment Agencies and Businesses. In the legislation an Employment Agency is defined as a ‘business (working on its own or in conjunction with another business with or without a view to making profit) of providing services for the purposes of finding employment with employers or of supplying employer with persons for employment by them’. An Employment Business is defined as a ‘business (working on its own or in conjunction with another business with or without a view to making profit) of supplying persons in the employment of the person carrying on the business, to act for, and under the control of, other persons in any capacity’. In other words, the main purpose of an Employment Agency is to provide an employer with permanent employees (through provision of a recruitment service), whereas the main purpose of an Employment Business is to provide an employer with temporary workers. However, it is important to note that a number of organisations may operate as both an Agency and a Business.
Follow the link to the Employment Forms page which provides a number of useful sample forms and letters for your information.
Qualifying Period - Day 1
- Protection from unfair dismissal for reasons including maternity, parental and paternity leave; undertaking activities aimed at improving health and safety; refusal to work on Sundays; assertion of rights under Working Time Regulations; performance of duties as trustee of occupational pension scheme;
- performance of functions as employee representative; making a protected disclosure; assertion of statutory rights, including right to National Minimum Wage and right to certain credits; claim for union recognition; trade union reason; part-time worker status.
- 26 weeks' ordinary maternity leave and additional maternity leave
- Paid adoption leave
- Protection from discrimination on the grounds of sex, race, religion or belief, sexual orientation, civil partnership status, marital status, age and disability.
Qualifying Period – 1 Month
- At least one week’s notice of termination of contract.
- Guarantee payment in case of lack of work.
- Payment of salary during suspension on medical grounds.
- Right not to be dismissed on medical grounds.
Qualifying Period – 2 Months
A written statement of the particulars of employment (to be received no later than two months after starting employment).
Qualifying Period – 3 Months
- Option to join stakeholder pension scheme.
Qualifying Period – 26 Weeks
- Two weeks' paid paternity leave
- Statutory Adoption Pay.
- Statutory Maternity Pay.
- Flexible Working Rights.
Qualifying Period – 1 Year
- Protection from unfair dismissal for reasons other than those specifically listed in the relevant pieces of legislation, including dismissal without following the correct statutory procedure.
Qualifying Period – 2 Years
- At least one week’s notice for each year of continuous employment.
- Redundancy payment and time off to look for other work or to arrange training
Before trying to consider what your employment rights are, you firstly need to ask yourself am I an employee, a worker or an independent contractor? There are so many different and atypical working arrangements that it can often be confusing with some people assuming they have one status when in actual fact they have another.
In order to determine your employment status you need to address some questions, for example –
- Do you have a contract of employment?
- What does my contract say?
- Is the contract clear in what the terms of the agreement are?
- Is what actually happens in practice different to what the contract says?
- Is my employer obliged to provide work?
- Am I obliged to accept work?
- When is the obligation triggered? – “As and when” or does it exist generally?
- What actually happens week to week? (Does the paper reflect the practice?)
- Have things developed into a pattern over the years?
- Am I told what to do and how to do it?
- Do I determine what needs to be done and in what way?
- Can I appoint a substitute or must I provide the service personally?
- Am I obliged to follow/use the internal rules etc of the organisation?
- Do I use my own equipment, wear a uniform etc?
- What are the tax and National Insurance arrangements?
- Am I restricted in who else I can work for?
- Am I penalised (not offered work for a time) for refusing work?
It is only when you have clear answers to these questions can you determine, with any degree of certainty, what your employment protection rights actually are.
Under Article 3(1) of the Employment Rights (NI) Order 1996 (ERO 1996), an employee is defined as being "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Under Article 3 (2) of ERO 1996, a contract of employment means "a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing".
The terms "contract of service" and "contract for services" are not statutory constructs and how the contract is categorised and their status determined is derived from case law. The question of whether a person operates under a contract of service is often both a question of fact and a question of law.
In a non-legal sense the term worker seems a like a generic label for anyone that works but in reality a worker is an ever developing legal construct. A worker is defined in the Employment Rights (NI) Order 1996 in Article 3 (3) as an individual who has entered into or works under (or, where the employment has ceased, worked under):
- A contract of employment; or
- Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
In simple terms workers have less employment protection rights than employees, but as somewhat of a hybrid construct statutory employment protections often cover workers as well as employees. The above definition of "worker" can also be found in the Working Time Regulations 1998), the National Minimum Wage Regulations 2015 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 , and there is a slightly wider definition under the Public Interest Disclosure (NI) Order 1998.
Quite often someone will be engaged in work whereupon they are categorised (rightly or wrongly) as being casual, zero hours, cover or some other term that means not permanent and generally not an employee. It is difficult to generalise about this category of individual without knowing the answers to the questions listed above and the particular “facts sensitivities” – for example the paper not reflecting the practice, the self-employed status being a “sham”, a long established working arrangement through custom and practice being at odds with what the arrangement began. Each case will turn on its particular facts and as such a diagnostic approach is often required using the above listed questions as a starting point.
Ultimately it is up to an industrial tribunal to determine the status of an individual and the level of protection afforded by employment protection laws.
List of basic employment rights – At a glance
|Right not to be unfairly dismissed (after 1 yrs’ service)||Yes||No||No|
|Right to receive written statement of particulars / terms and conditions||Yes||No||No|
|Statutory minimum notice||Yes||No||No|
|Statutory redundancy pay (after 2 yrs’ service)||Yes||No||No|
|Protection from discrimination in the workplace||Yes||Yes||Possibly|
|National Minimum Wage||Yes||Yes||No|
|Protection from unlawful deduction from wages||Yes||Yes||No|
|Paid annual leave||Yes||Yes||No|
|Right to daily and weekly rest breaks||Yes||Yes||No|
|Right to be accompanied at a disciplinary or grievance hearing||Yes||Yes||No|
|Rights under data protection legislation||Yes||Yes||Yes|
|Protection under anti-discrimination law||Yes||Yes||Yes|
|Statutory Sick Pay||Yes||Possibly||No|
|Shared parental leave and pay (if qualifying criteria is met)||Yes||No||No|
|Unpaid time off to care for dependants||Yes||No||No|
|Right to request flexible working||Yes||No||No|
|Time off rights (in general)||Yes||No||No|
|Right not to suffer detriment in certain contexts||Yes||Possibly||No|
|Protection under TUPE legislation||Yes||No||No|
|Certain payments on insolvency||Yes||No||Possibly|
|Health and Safety in the workplace||Yes||Yes||Yes|
The Equal Pay Act (Northern Ireland) 1970 established the principle that both men and women who are performing like work or work of a broadly similar nature or, work which is rated as equivalent under a job evaluation scheme, should not receive less favourable treatment in relation to their pay or other contractual terms on the basis of their gender. Any difference in treatment in relation to pay and other contract terms which cannot be justified may be viewed as discrimination on the grounds of sex. Guidance and a model policy is available from the Equality Commission.
The Equality Commission for Northern Ireland is an independent public body, established under the Northern Ireland Act 1998, with the aim of advancing and promoting equality of opportunity, encouragement of good relations and challenging discrimination through promotion, advice and enforcement.
THE ECJ is composed of 28 judges (one from each of the EU Member states, for example, the United Kingdom) and eight Advocate Generals. In the context of employment, the purpose of the ECJ is to ensure that member states, comply with their obligations under the Treaty of Rome and correctly implement, interpret and apply directives and regulations of the EU, for example the Working Time Directive. Often, Member States will refer complex questions arising out of directives and regulations to the ECJ for correct interpretation.
A Directive is a piece of law which emanates from the European Union. Member states (for example, the United Kingdom) are obliged to implement Directives, such as, the Working Time Directive, into their domestic laws within the time limits set out in the Directives. The integration of the Directive must be carried out in a manner which ensures that any domestic legislation embodies the aim and principles of the Directive.
An ex-gratia payment is a payment made by an employer to an employee to compensate them in some way. For example, an employer may make an ex-gratia payment to an employee in addition to a Statutory Redundancy Payment or make an ex-gratia payment to an employee by way of settlement of a potential or actual Industrial Tribunal complaint.
The EWC is the week, beginning with a Sunday, in which it is expected that a baby will be born and is an important date in calculating the commencement of Maternity Leave.
See Maternity Leave
Express terms in a contract of employment are those which have been specifically agreed between an employee and an employer. They may be clearly stated in the Written Statement of Employment Particulars, or set out in a written offer of employment, or in any other employment documentation, for example, a Company Handbook.