A to Z of employment law
Maz Dannourah

A-E

A is for Agency workers

B is for Breach of Contract

C is for Contracts of employment

D is for Discrimination

E is for Employment status

Agency workers

The rules governing the pay and conditions of agency workers are set out in the Agency Workers Regulations, which were introduced in 2011.

An agency worker is defined as someone who has a contractual relationship with an agency, but works temporarily under the supervision of another party who has hired them for that purpose.  The Regulations were introduced to remove differences in pay and conditions between agency workers and permanent staff.

The regulations split agency workers’ rights to equal treatment into two sections – those that would apply at day one of employment and those that apply after 12 weeks’ employment.

From day 1, agency workers are entitled to the same access to certain facilities provided by the hirer.  These include: canteen or other facilities; any workplace crèche; transport services; toilets and showers; common rooms; mother and baby rooms; food and drink facilities and car parking.

From week 12, in addition to the above, they have rights to equal treatment in respect of key elements of pay; working hours; night work; rest breaks; annual leave, etc.

There are a number of elements of detail you need to consider when looking at agency workers, including comparable workers, the 12 week qualifying period and what happens when workers leave and come back to the same place of work.

In addition a number of schemes have been introduced by employment agencies which attempt to work within the regulations whilst giving flexibility to employers and employees.  Some of these schemes have yet to be tested in the courts.

Breach of contract

A breach of contract can occur in any contract.  In employment law terms, it occurs when the employer or the employee breaks one of the terms of the contract to which they have agreed.

If an employer commits a fundamental breach of the contract, the employee has a number of options.  At one end of the scale, he could accept the breach and carry on as before or, to the other extreme, resign and then make a claim for constructive dismissal.

Where an employee breaches the contract, there are again a number of options open to the employer - from ignoring it to taking disciplinary action and dismissal without notice.

The key point to remember is that any actions either side takes must be in proportion to the severity of the breach.  Any claims at Employment Tribunal will take the response into consideration when deciding any awards.  The maximum a Tribunal can award for breach of contract is £25,000.

Contracts of employment

The contract of employment governs the working relationship between employers and employees.  Although it does not have to be written down, it is highly advisable to have the contract in writing for reference should a problem arise.

Contract terms can be in many forms, including written and verbal, in staff handbooks, on notice boards, or offer letters.  They can also be implied – terms automatically included in a contract (even though they may not have been expressly agreed), such as mutual trust and confidence, or paying a bonus at Christmas if it has been done over a number of years.

A contract could also be part of a collective agreement, for example, pay and terms of employment could be negotiated by a union or employee representative.

A written statement of employment particulars must be given to employees within two months of their starting work.  This written statement must contain a number of items, including the employee’s name and job title, rates of pay, hours of work, etc.   It is important to remember that particulars which comply with the minimum requirements will not necessarily cover other important areas which would be found in a contract of employment, such as garden-leave provisions or restrictive covenants.

Our advice would be to always issue a full contract of employment so that employees know where they stand and you both have a clear record of the terms on which your relationship will be based.

Discrimination

It is against the law to discriminate in the workplace on a number of grounds known as ‘protected characteristics’.  These are: age; being or becoming a transsexual person; being married or in a civil partnership; being pregnant or having a child; disability; race (including colour, nationality, ethnic or national origin); religion, belief or lack of religion/belief; sex and sexual orientation.

Discrimination can take any one of a number of forms:

Direct discrimination: where someone with a protected characteristic is treated less favourably because of the particular characteristic.

Indirect discrimination: where workplace rules apply to all employees, but put someone with a protected characteristic at an unfair disadvantage.

Harassment:  where someone with a protected characteristic is the recipient of unwanted behaviour which creates an offensive environment for them.

Victimisation:  where someone is treated unfairly because they have complained about discrimination or harassment.

If an employer is found to have discriminated against an employee, significant awards for damages can be made against them – there is no upper limit to the compensation a Tribunal can award.

Employers must be careful that their policies and procedures do not discriminate.  Areas to check include dismissal; employment terms and conditions; pay and benefits; promotion and transfer opportunities; training; recruitment and redundancy.  There are special conditions in relation to disability discrimination at work where, for example, an employer needs to make reasonable adjustments to working practices to help disabled job-applicants and employees.

Employment status

There are three common types of employment - ”employee”, “worker” and “‘self-employed”. Depending on the employment status, different rights and conditions may apply.

Employee: the status of employee covers the majority of people.  Employees work under a contract of employment (which need not be in writing) which sets out what they are expected to do.  An employee’s employer is obliged to deduct Income Tax and National Insurance contributions before payment.  In addition, an employee is entitled to all minimum statutory rights including maternity leave, holiday pay and statutory redundancy pay. Employees also receive all the rights of workers

Worker: a worker covers a broader category than employee and usually excludes those who are self-employed.  A worker is an individual who works for an employer either under a contract of employment or any other form of contract.  They are entitled to core employment rights and protections.  Examples of people who are workers include agency workers, freelance workers and short-term casual workers.  Workers’ rights include National Minimum Wage, rest breaks and protection from less favourable treatment.

Self-employed:  a self-employed individual does not work under a contract of employment.  They are likely to work under a contract to provide services over a set period of time for a fee.  The self-employed are responsible for their own Income Tax and National Insurance payments, and do not have ‘rights’ as such, as they are their own boss and can set their own conditions.

It is important to be clear about the status of employees, as each group has different rights and obligations.  You should also remember that simply calling somebody a “worker” or classing them as “self employed” does not necessarily mean they will be treated as such for tax purposes or other significant rights. There are a number of ways to determine the status of an employee and our employment law team will be happy to help.

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