These notes deal with the main employment rights given to a person by legislation and with the enforcement of those rights. They should be viewed as creating a floor of minimum basic rights that can be built upon by negotiation with an employer. The great majority of rights dealt with may be enforced by complaint to an industrial tribunal. Many of the rates (for instance, Statutory Sick Pay) referred to throughout, although accurate at time of writing, are subject to change. Accordingly, care should be taken when advising about the rates which apply.

If an employee wishes to take a claim to an industrial tribunal in respect of many of the rights discussed in Rights of Employees, the statutory procedures described in section 5 will be applicable and should be taken into account by those wishing to make a claim.

For example, if an employee suffered unlawful deductions from her/his wages, s/he is required, unless limited exceptions apply, to write to the employer setting this out as a grievance. If the employee fails to do this and fails to wait 28 days before bringing such a complaint to an industrial tribunal, the claim will normally be automatically rejected.

The statutory procedures do not have to be followed if the person is not an employee but a worker. The distinction between worker and employee is therefore an important one.

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1. WORKERS AND EMPLOYEES

1.1 Employee

Many, although not all, employment rights contained in the Employment Rights (NI) Order 1996 (ERO), are available only to a person who is an employee. For instance only an employee has a right to a redundancy payment or to claim unfair dismissal. Article 3 of the ERO defines an employee as ‘an individual who has entered into or works under a contract of employment’. A contract of employment is defined as a contract of service or apprenticeship. Many people who carry out work for others are not employees. For example, a window cleaner is normally not an employee of the person who owns the house but is self employed and has what is known in law as a contract for services with each of her/his clients. Someone who is placed in a workplace by an agency and paid through that agency is likely not to be an employee of either the agency or the end-user, depending on all the circumstances.

In assessing whether someone is an employee, there are certain fundamental matters which normally must be in place:

	the person must agree to provide work personally. A substitute cannot normally be nominated except in very limited circumstances;
	there must be mutuality of obligation between the employer and employee. Thus, if there is no obligation on a person to actually turn up to work or if s/he is engaged on a ‘casual as required’ basis s/he may not be an employee;
	the person must be subject to the overall control of the employer.

If all of the above matters are present it is then necessary to look at other elements of the working relationship such as who provides the equipment or tools to carry out the work. It should be noted that just because a person is described as ‘self employed’ in a contract, or because s/he pays tax and national insurance on a self-employed basis, this does not automatically prevent her/him being an employee. All of the circumstances should be looked at as a whole in deciding employment status.

A wider definition of employee is contained in anti discrimination legislation and includes a person who contracts personally to carry out work.

1.2 Worker

To claim rights under many of the employment laws recently introduced, a person in the workplace need only show that s/he is a ‘worker’. This is generally considered to be a much wider term than ‘employee’. For instance, a ‘worker’ in the Working Time Regulations (NI) 1998 is defined as a person who has entered into or works under:

	a contract of employment;
	any other contract, whether express or implied and (if it is express whether oral or in writing) whereby s/he undertakes to do or perform personally any work or services for another party whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried out by her/him.

In other words, worker covers almost all contracts to perform work other than those carried out on a genuinely self-employed basis.

Examples of other legislation which include rights for workers are the National Minimum Wage Act 1998, the Public Interest Disclosure (NI) Order 1998 and the provisions in the ERO relating to unlawful deductions from wages.

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2. LENGTH OF SERVICE

Some but not all of the rights in employment law are only acquired after a certain length of time working for the same employer. For instance, an employee must have worked continuously for two years with the same employer before s/he can claim a statutory redundancy payment. Likewise, for unfair dismissal, the qualifying period for claiming is normally one year. This requirement to have been employed continuously for a qualifying period does not apply to a number of specific types of dismissal including dismissal because of trade union membership, health and safety reasons, attempting to enforce a statutory employment right and pregnancy (see 16.4.6).

The right not to be subjected to unlawful discrimination also does not require any length of service.

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3. CONTRACTS OF EMPLOYMENT

Aside from the statutory rights, the legal relationship between employer and employee is based on the contract between them. A contract is just a legally enforceable agreement. It does not have to be in writing. It is obviously preferable that an employee should have a formal written contract of employment, but very often there is no such document. The contract of employment is unlike other contracts. This is because it is extremely difficult to tie down everything in great detail. This has the benefit of enabling an element of flexibility. However, the consequences are that often nothing is automatic about the employment relationship as putting it into effect requires dialogue, day-to-day consensus and a certain amount of ‘give and take’. Furthermore, because of the uncertainty, conflict and co-operation are inherent in the employment relationship and there is enormous scope for divergent interpretations, goals and behaviours.

3.1 Illegal contracts

It was previously believed that a person would lose any legal rights s/he had as an employee if the contract under which s/he worked involved illegal activity in which both parties knowingly participated (eg fraud on Her Majesty’s Revenue & Customs (HMRC) through non-payment of tax lawfully due or benefit fraud ie ‘doing the double’). Not all rights may be lost as a result of a contract being illegal. For instance, a claim for sex and race discrimination may be able to proceed in limited circumstances despite the non-existence of a lawful contract of employment.

3.2 Where to find the contract

The terms of a contract will normally include matters such as pay, job duties, holidays, etc. In most cases, such things are taken for granted, but in the event of a dispute it is important to know exactly what the terms of the contract are. Unfortunately it is often unclear what has been contractually agreed.

While some employers give workers a full written contract detailing the terms and conditions of employment which both the employer and the employee sign, many people at work never receive a written contract of employment. Generally, there is no legal obligation on the employer to provide a written contract of employment. An employer is, however, almost always obliged to provide a written statement detailing the main terms of employment (see section 4).

In cases where there is no written contract or where the written contract is not comprehensive or up to date, it may be necessary to look at a number of different sources to determine the terms of the contract.

The terms of a contract of employment are normally a mixture of express and implied terms.

3.3 Express terms

The express terms of a contract of employment are those terms that are expressly agreed between the employer and the employee. Express terms may be written or verbal (ie verbally agreed between the employer and the employee).

Apart from any actual written contract, other sources of written express terms could be:

	a letter of appointment which sets out conditions of employment;
	a written statement of terms and conditions (see section 4);
	pay slips giving details of wages actually paid.

Terms and conditions set out in company handbooks or in collective agreements may also be incorporated into a contract of employment as express terms where there is a clear agreement, either verbally or in writing, that the relationship between the employer and employee is to be governed by such provisions. However, it would be wrong to assume that company handbooks and collective agreements are incorporated into the contract of employment in all cases.

In practice, it is very common for there to be a lack of terms which are expressly agreed upon. Often there is merely an offer of employment and an acceptance of that offer with no specific agreement about hours of work, holidays, etc. To establish the terms of the contract in such cases, it is often necessary to look to the implied terms.

3.4 Implied terms

Terms may exist as part of a contract of employment due to conduct, or custom and practice (eg an employee received certain holidays in previous years, other staff doing the same job have certain hours, rates of pay etc).

In addition, over the years, judges have decided that there are also, under common law, implied terms which they consider to be present in every contract. The implied duties on the employer include the duties to take reasonable care of the employee's health and safety, not to destroy the relationship of trust and confidence between the parties, to pay wages, and not to require the employee to undertake unlawful acts.

Implied terms can never override express terms. However, implied terms may assist in explaining ambiguous express terms or can be used to control how an employer should exercise discretionary powers.

3.5 Statutory terms

The law traditionally did not intervene to guarantee rights to employees, preferring to leave the negotiation of terms and conditions to the employer and employee. In practice, this often led to very unfavourable conditions of employment due to the employee’s weak negotiating position. Therefore, a contract of employment should always be checked when advising a worker as it may provide more rights than the minimum statutory protections discussed in these notes.

There has been intervention both at European and domestic level to ensure certain minimum protection and rights.

If there is a difference between express terms in a contract and statutory terms, the statutory terms will normally prevail. For example, if a contract states that an employer is entitled to two days notice to terminate her/his employment but the statute says s/he is entitled to one week, the statutory term will prevail and the employee will be entitled to one week notice pay.

Occasionally, although rarely, it may be possible to negotiate rights different from the statute if certain conditions are fulfilled. For instance, see 7.8, where allowable modification under working time legislation is discussed.

The importance of checking the actual legislation should not be overlooked.

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4. WRITTEN STATEMENT OF TERMS

4.1 When must a statement be given?

As already noted, often there is no formal written contract, making it difficult to ascertain what terms have been agreed between the parties. For this reason, Part III of the ERO provides that an employee who is to be employed for more than one month must be provided with a written statement of employment particulars, given no later than two months after the beginning of employment.

4.2 Status

This statement is not automatically a contract of employment and is indeed often only what the employer believes has been agreed with the employee. It is, however, good evidence of what might be contained in the contract of employment.

4.3 Contents

The following particulars must be given in a single document:

	the names of the employer and employee;
	the date when any period of continuous employment began (taking into account any employment with a previous employer which counts);
	the scale or rate of pay or the method of calculating pay;
	the intervals at which wages are to be paid (for example weekly or monthly);
	hours of work;
	entitlement to holidays, including public holidays, holiday pay and entitlements to accrued holiday pay on the termination of employment.
	the title of the job or a brief description of the work;
	the place of work.

The employer must also provide the following information although this can be given in instalments:

	the length of notice which the employee has to give or receive to end the contract of employment;
	if the employment is not intended to be permanent, the period for which it is expected to continue, or, if it is for a fixed term, the date when it is to end;
	any collective agreements which directly affect the terms and conditions of employment;
	other details if the employee is required to work outside the UK in respect of pay, currency in which s/he is to be paid and how long s/he has to work outside the UK.

The employer also has to provide details of the following terms and conditions although these can be referred to in a document which is reasonably accessible to the employee:

	incapacity for work due to sickness or injury, including any provision for sick pay;
	pensions and pension schemes.

4.4 Disciplinary and grievance procedures

The employer also has to provide a note in the statement of employment particulars either specifying grievance procedures or referring to a document where these can be reasonably accessed by the employee. Since 3 April 2005 all employers, regardless of size, have to provide details in relation to disciplinary procedures. Regardless of the procedures of the employer, employers and employees are required to follow set minimum statutory grievance, disciplinary and dismissal procedures in certain circumstances. Further details can be found in section 5.

4.5 Changes in particulars

Where there is a change in any of the particulars, the employer must give the employee a written statement containing particulars of the change at the earliest opportunity and in any event not later than one month after the change in question.

4.6 Enforcement of the right to a written statement

It should be noted that there does not have to be provisions in the contract about any of the matters listed in 4.3 and 4.4. However, where there are no provisions this must be stated in the statement of employment particulars. If the written statement is not provided, the employee can complain to the industrial tribunal. The tribunal can declare what the particulars which should have been given are. The tribunal can also award compensation of two weeks pay if the employer does not provide any or adequate particulars. This can be increased to four weeks pay if the tribunal considers it just and equitable in all the circumstances to do so. Compensation can only be awarded if the tribunal finds in favour of the employee in actions brought under the jurisdictions identified in section 5.

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5. statutory procedures

Since 3 April 2005, employers and employees normally have to follow dismissal and disciplinary procedures or statutory grievance procedures when claims are brought in the fair employment tribunal or industrial tribunal under the following jurisdictions (Note: the procedures relate to employees, not applicants for employment or workers who are not employees):

discrimination (see section 13):

equality clauses (see 6.5);

sex discrimination in the employment field;

disability discrimination in the employment field;

race discrimination in the employment field;

discrimination on grounds of religious belief or political opinion;

discrimination on grounds of sexual orientation;

discrimination on grounds of age;

certain claims relating to wages:

unauthorised deductions and payments (see 6.3);

detriment in relation to the national minimum wage (see 6.1);

certain trade union rights:

detriment in relation to union recognition rights;

detriment in relation to trade union membership and activities;

breach of contract claims under the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994;

breach of the Working Time Regulations (see section 7);

detriment relating to European Works Councils;

certain detriments in employment relating to:

health and safety cases [article 68 of the 1996 Order] (see section 15);

working time cases [article 68A of the 1996 Order] (see section 7);

trustees of occupational pension schemes;

employee representatives for the purposes of collective redundancies or the transfer of an undertaking;

exercising the right to time off for study or training (see 9.3);

leave for family and domestic reasons relating to pregnancy, childbirth, maternity, ordinary, compulsory or additional maternity leave, ordinary or additional adoption leave, parental leave, paternity leave, time-off for family and dependants provisions (see sections 9 and 10);

flexible working (see 9.2.3);

the worker making a protected disclosure (see section 14);

from 6 April 2007, the procedures are extended to matters relating to limited-liability companies, and consultation of employees (including consultation regarding pension schemes);

statutory redundancy payments (see section 18);

unfair dismissal (see 16.4).

5.1 Disciplinary and dismissal procedures

An employer should follow disciplinary and dismissal procedures when dismissing or taking relevant disciplinary action. The exception is where the dismissal is a retirement, when a different retirement procedure should be used.

5.1.1 Relevant disciplinary action

‘Relevant disciplinary action’ is action short of dismissal which the employer asserts is based wholly or mainly on the employee’s conduct or capability. It does not include suspension on full pay or the issuing of warnings. Therefore if an employee is dissatisfied with receiving a warning, s/he should use the statutory grievance procedure to have the matter considered.

5.1.2 Which disciplinary procedure?

Normally the standard disciplinary procedure should be followed. However, the modified procedure will apply where an employee is dismissed for gross misconduct without notice and it was reasonable for the employer to dismiss before enquiring into the circumstances in which the conduct took place.

5.1.3 The standard procedure

The standard procedure consists of three steps. It is initiated by the employer writing a letter to the employee setting out the conduct which led the employer to contemplate dismissing or taking disciplinary action. The employer must arrange a meeting before taking any action other than suspension and must provide a right of appeal. The dismissal or disciplinary action can be taken before the appeal hearing.

5.1.4 The modified procedure

The modified procedure will take place after dismissal. It consists of two steps. The employer must send a letter setting out what misconduct led to dismissal and give the employee a right of appeal.

5.2 Grievance procedures

An employee is almost always required to follow the statutory grievance procedures if s/he is complaining about action taken by an employer or which the employer is contemplating taking in relation to any of the issues referred to in the introduction to section 5 except those to which the statutory disciplinary and dismissal procedures apply. If the complaint(s) arise wholly from the termination of employment, the grievance procedures do not apply (eg a claim of unfair dismissal and a claim that the dismissal was an act of discrimination). There are two types of statutory grievance procedure; standard and modified.

5.2.1 The standard procedure

The standard grievance procedure consists of three steps. It is initiated by the employee writing a letter setting out the grievance to the employer. The employer must then arrange a meeting to discuss the grievance and provide an opportunity for the employee to appeal if the matter is not resolved at the meeting.

5.2.2 The modified procedure

The modified grievance procedure consists of two steps. There is no need to hold a meeting under the modified grievance procedure. All that is required is that the employee sets out the grievance in writing and the employer responds in writing.

5.2.3 Which grievance procedure?

Normally the standard grievance procedure should be used. The modified grievance procedure can only be used if the employee no longer works for the employer, the standard grievance procedure was not completed before the last day of employment, and both parties have agreed in writing that the modified procedure should apply.

5.3 When do statutory procedures not apply?

In certain circumstances, the statutory procedures do not have to be followed. For instance, the statutory procedures do not apply where either:

	a party (the employer or employee) has reasonable grounds to believe that commencing the procedure or complying with any subsequent requirement under the procedure would result in a significant threat to her/him, her/his property or any other person or property; or
	the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with subsequent requirements would result in her/him being subjected to further harassment; or
	it is not practicable for the party to commence the procedure or comply with a subsequent requirement within a reasonable period, or it would not be possible to comply with the procedure without disclosing information which would be contrary to national security.

There are other instances where the procedures do not apply. For example, the dismissal and disciplinary procedures do not have to be followed if there is dismissal then re-engagement in certain circumstances, for some collective redundancies or industrial action dismissals or where employment is covered by a designated dismissal procedures agreement. If an employer’s business suddenly and unexpectedly ceases to function because of an event unforeseen by the employer and it becomes impracticable to employ the employee, for instance if the premises burn down, there is no need to follow the statutory dismissal and disciplinary procedure. The dismissal and disciplinary procedures also do not apply if the employee cannot continue to work in the position s/he held without contravening a statutory duty or restriction, for instance by losing a driving licence if this was an essential requirement for a position.

Where the modified dismissal and disciplinary procedure would apply but the employee presents an application to an industrial tribunal before the employer sends a step-one letter to the employee, there is no need for the statutory procedures to be complied with.

The statutory grievance procedures will also not apply if the employee is no longer employed by the employer, neither grievance procedure was commenced and it ceased to be reasonably practicable to set out the grievance in writing and send it to the employer since employment ended.

The grievance procedures will be treated as having been complied with if the employee has availed of an entitlement to raise a grievance under an alternative grievance procedure under a collective agreement. Furthermore, there are limited circumstances whereby the grievance procedure will be treated as being complied with after the step-one grievance letter is forwarded by the employee under the standard grievance procedure and it is not reasonably practicable for either of the parties to comply with the remainder of the procedure.

As previously noted the statutory procedures do not apply to retirement.

It is recommended that, in circumstances when the statutory procedures may not apply, legal advice is sought before making any decision not to comply with the procedures, as there are potentially drastic consequences (see 5.5 below).

5.4 General requirements

The following general requirements apply to the procedures:

	each step and action must be taken without unreasonable delay;
	the timing and location of meetings must be reasonable;
	meetings must be conducted in a manner that enables both employer and employee to explain their cases;
	in the case of appeal meetings, the employer should, so far as is reasonably practicable, be represented by a more senior manager than attended the first meeting;
	the employee can choose to be accompanied to the step-two meeting and/or step-three appeal meeting by either a work colleague or trade union representative.

5.5 Impact of not following the statutory procedures

A failure to follow the statutory procedures could have detrimental consequences:

	if an employee has not written a step-one letter under the grievance procedure and waited 28 days to elapse, a complaint will not be admitted by an industrial tribunal. After the 28 days have elapsed, the employee will be able to present a claim. There are no similar restrictions on admissibility of a complaint to an industrial tribunal where the statutory dismissal and disciplinary procedures apply but have not been followed;
	failure by an employer to follow the statutory dismissal and disciplinary procedures when dismissing could result in a finding of unfair dismissal if an employee has at least one year’s continuous service with the employer. However, the employer will escape a finding of automatic unfair dismissal if s/he can show that s/he would have dismissed the employee even if s/he had followed the statutory procedures;
	compensation awarded by a tribunal will be increased or reduced by at least ten per cent and may be increased or reduced by up to 50 per cent depending on who failed to follow the procedures unless there are exceptional circumstances that would make such an increase or reduction unjust or inequitable.

5.6 Industrial tribunal time limits & statutory procedures

Time limits to lodge a claim with an industrial tribunal will not normally be extended, except in certain limited circumstances.

In relation to grievance procedures:

if an employee sends a step-one grievance letter to an employer within the normal time limit for presenting a tribunal application this will trigger an automatic three month extension of time limit from the date when it would otherwise have expired. It will not be necessary to contact the tribunal in such circumstances for the automatic extension to be activated;

where the employee attempts to present a tribunal application without writing a step-one grievance letter and waiting 28 days, the tribunal will return the application. There may be a three month extension from when the original time limit would otherwise have expired. This will only apply if the step-one letter is sent to the employer within 28 days of when the normal time limit would have expired. If the step-one letter is not sent within the 28 day period the employee will not normally be able to present a tribunal application.

An extension of time to lodge a tribunal application can be granted where the statutory dismissal and disciplinary procedures apply, for instance in an unfair dismissal claim. This extension may be granted for a three month period from the date the original time limit would originally have expired. The extension will only be granted where the employee has reasonable grounds for believing that the disciplinary procedure had not been completed and was still being followed when the original time limit expired.

It should also be noted that where an employee wishes to pursue a claim against an individual (for instance a discrimination claim against a co-worker) in addition to the employer, the statutory grievance procedure does not apply to the claim against the individual and the time limit will not be extended for that claim. The employee will still have to go through the grievance procedure with regards to the claim against the employer.

The statutory procedures are complex and have not been explained in full detail in these notes. It is strongly advised that legal advice is sought when any issue relating to the procedures arises.

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6. WAGES

Workers and employers are free to agree on how much should be paid for work done as long as the worker (if s/he qualifies) is paid at least the national minimum wage.

6.1 Minimum wage

The National Minimum Wage Act (NMW) 1998 came into force on 1 April 1999. It applies to workers (see 1.2). The NMW Act introduced minimum wage rates. The rates normally change every October. The rates are as follows:

	for a worker aged 16-17 (who is not an apprentice): £3.40 per hour from 1 October 2007;
	for a worker aged 18-21: £4.60 per hour from 1 October 2007;
	for a worker aged 22 and over: £5.52 per hour from 1 October 2007.

The development rate for workers aged 22 and over has been abolished for pay reference periods starting on or after 1 October 2006.

Workers paid on a piece-rate basis should be paid the minimum hourly wage or get a fair piece-rate which allows them to earn the minimum wage.

6.1.1 Persons excluded from the NMW

The following are excluded from claiming the NMW:

self employed individuals;

a person working under a contract of apprenticeship who is less than nineteen years old;

a person working under a contract of apprenticeship who is over the age of nineteen and within the first twelve months of commencement of the apprenticeship. (There may be room for debate over whether a worker is genuinely working as an apprentice. To be excluded, a worker can be either working under a traditional contract of apprenticeship or working under the government arrangements known at 1 October 2004 as Jobskills Traineeships or Modern Apprenticeships);

a worker who is participating in a scheme provided under government arrangements known as Access;

a person participating in a scheme designed to provide training, work experience or temporary work, or to assist her/him in seeking or obtaining work which is either a scheme provided to her/him under arrangements made by the government or funded in whole or part under the European Social Fund. This exception does not apply if the individual is actually employed under a contract of employment by the employer with whom s/he is placed under the scheme;

a worker who is undertaking a higher education course who, before the course ends, is required as part of that course to attend a period of work experience not exceeding one year is not entitled to be paid the NMW in respect of work done for the employer as part of that course;

a worker who is participating in the European Community Leonardo Da Vinci Programme in respect of work done for her/his employer as part of that programme; and

a worker who is participating in the European Community Youth in Action Programme in respect of work done for her/his employer as part of that programme;

a person who is homeless or residing in a hostel for homeless persons and who is participating in a scheme under which s/he is provided with shelter and other benefits in return for performing work;

a person living in the family home of the employer for whom s/he works who is not a member of that family but is treated as such in particular as regards provision of accommodation and meals and sharing of tasks and leisure activities and who is not liable to make any payment in respect of the provision of the living accommodation or meals;

a family member of the employer who resides in the family home and who shares in the tasks and activities of the family or the running of the family business;

a person serving as a member of the naval, military or air forces of the Crown;

a person employed as a master, or as a member of the crew of a fishing vessel who is paid only by a share of profits or gross earnings of the vessel;

a prisoner in respect of any work done in pursuance of prison rules;

a volunteer employed by a charity, a voluntary organisation, an associated fundraising body or a statutory body who receives no monetary payments of any description or no monetary payments except in respect of expenses actually incurred in the performance of duties or reasonably estimated as likely to have been incurred and no benefit other than the provision of subsistence or such accommodation as is reasonable;

a residential member of a religious or other community if:

the religious community is a charity or established by a charity and is not an independent school or providing a course of further or higher education;

a purpose of the community is to practice or advance a belief of a religious or similar nature;

all or some of its members live together for that purpose;

a person undertaking work (or work-like activities) for therapeutic reasons if the participant is genuinely not obliged to perform duties and the employer is genuinely not obliged to provide the activity or pay the individual.

The agency responsible for enforcement is HMRC. Enforcement officers have certain powers to obtain information and can issue enforcement notices to require employers to pay the national minimum wage. If an enforcement notice is ignored, the officer has the power to bring a case before a tribunal or court on behalf of the worker(s) and/or impose a penalty on the employer. Citizens Advice, in partnership with HMRC, has set up an advice line (telephone number 0845 6500207) which deals with enquiries and complaints in respect of payment of the NMW.

An employer must keep records for a three year period in respect of the NMW which are sufficient to establish that a worker is being paid at least the NMW. A worker who has reasonable grounds for believing s/he is not being paid the NMW is entitled to have access and to copy records within fourteen days of a written request. If the worker is refused access, s/he can complain to an industrial tribunal within three months of the refusal.

Workers who are not paid their entitlement to the NMW can make a claim for unlawful deductions from wages in the industrial tribunal (see section 19) or sue for breach of contract in the civil courts.

A worker subjected to a detriment or an employee dismissed due to action taken with a view to securing the benefit of any rights under the NMW can complain to an industrial tribunal. A dismissal in such circumstances will be treated as automatically unfair and no qualifying period of service will be required to bring a claim for unfair dismissal.

6.2 Payslips

Under Article 40 of the 1996 ERO, all employees are entitled to be given an itemised pay statement every time they are paid.

This statement must show gross and net wages, the amounts of any deductions and how the wage has been calculated. If an employer fails to provide such a pay statement, an employee may take the employer to an industrial tribunal and receive compensation equivalent to the amount deducted from her/his wages over the previous thirteen weeks.

The pay statement need not contain separate details of a fixed deduction if it contains an aggregate amount of fixed deductions and the employer has given a standing statement of fixed deductions previously. This standing statement will only be valid for twelve month periods.

6.3 Deductions from wages

The ERO makes provision for the protection of wages. The relevant provisions apply to workers (see 1.2). Normally, an employer can only make deductions from a worker's wages where such a deduction is authorised by statute (eg income tax), is authorised under the contract of employment (and notified to the worker in writing) or is agreed in writing by the employee before the reason for the reduction arises. This does not apply, however, where an earlier overpayment of wages is being recovered.

Particular protection is given to retail workers in relation to deductions for shortages so that, for example, no more than ten per cent of any payment of wages, other than a final payment, may be deducted for shortages. The provisions in relation to ‘unauthorised deductions from wages’ in the ERO may be used to recover wages withheld but not wages in lieu of notice, which may be recoverable in the industrial tribunal or civil courts in a claim for breach of contract.

Note: Workers who sue for breach of contract should be aware that employers can counter sue. The damages an employer may recover could be substantially more than what the worker is claiming.

6.4 Guarantee payments

Employees who have been employed for one month or more may be entitled to guarantee payments from their employer if they are laid off or put on short time working. However, the right to a guarantee payment will be lost if the employee refuses an offer of suitable alternative work or if s/he does not comply with the reasonable requirement of the employer to be available for work. The right to a guarantee payment is currently limited to a maximum of £20.40 per day and can only be paid for up to five days in any three month period. The limit on a guarantee payment changes every year, usually during March.

An employee who does not receive payment can apply to an industrial tribunal within three months of the day for which s/he was not paid.

It should be noted that, in the absence of a contractual term agreed between the employer and employee, the employer may be acting in breach of contract in laying an employee off or putting the employee on short time working. This may enable the employee to resign in response to the breach of contract and, if s/he has one year's continuous service, to claim unfair dismissal on the basis that s/he has been constructively dismissed (see 16.4).

6.5 Equal pay

The Equal Pay Act (NI) 1970, as amended, guarantees equal pay and conditions to women who are engaged in the same or broadly similar work as men, or work which, although different, is of ‘equal value’.

It also works vice versa to ensure men are paid the same as women doing similar work. Advice on equal pay claims should be sought from the Equality Commission for Northern Ireland (telephone 028 9050 0600).

6.6 Right to sick pay

6.6.1 Rate of Statutory Sick Pay

Statutory Sick Pay (SSP) is payable by an employer to an employee for up to 28 weeks at a rate of £75.40 per week from 1 April 2008. The definition of employee is not limited to that of other employment legislation (see section 1). It includes temporary and casual workers. However, agency workers engaged by an agency for less than three months do not qualify. The rate of SSP usually changes every April.

6.6.2 Qualifying for SSP

Employees must earn an amount equal to at least the lower earnings limit for national insurance contributions liability - currently £90 - and be ill for a period of four days or more in a row. SSP is only payable if the employee is sick (or unable to attend work due to the operation of public health legislation to prevent the spread of infectious disease). Thus, an employee cannot be paid SSP for instance if a child is sick or if s/he is absent to attend a funeral.

6.6.3 Qualifying days

If the employee is sick for less than four days, no SSP is payable. SSP is not payable for the first three days. After this period SSP is only payable for qualifying days. Each week must have at least one qualifying day. If the employer and employee have not agreed a qualifying day in advance of a period of sickness, qualifying days are days that an employee is required to be available for work for the employer under the contract of employment. If the employer and employee agree that there would be no such contractual days, the Wednesday will by default be the qualifying day. If there is no agreement as to which days the employer would have been required to work, all days of the week, other than those agreed as being rest days, will be qualifying days. Essentially, this means for instance in the case of shift work that there may be different qualifying days, so that different amounts of SSP may be payable each week.

6.6.4 Notification of illness

To claim SSP, the employee must notify the employer of her/his illness. Whilst an employer can set a time limit for notification, the employer cannot insist on notification being given personally or more than once in every seven days. Unless otherwise agreed, that notification should be given in writing. If the employer has not set any time limit for notification, the default time limit is that the employee should inform the employer by the seventh calendar day following the first qualifying day.

For the first seven days of absence, self certification is sufficient. After the first seven calendar days of sickness, the employer may require the employee to supply medical evidence in the form of a doctor’s statement.

6.6.5 Late claims

If notification is not given on time, the employer can still pay SSP if s/he accepts there was good cause for late notification. However, a delay in notification which is more than 91 days late will not be acceptable under any circumstances regardless of whether there was good cause.

6.6.6 Challenging the employer's decision

If the employer withholds SSP the employee can ask the employer for a written statement which explains why SSP is not being paid for the days in question. The employee can then ask HMRC for a decision on whether SSP is payable. The application must be made to HMRC within six months of the earliest day for which SSP is in dispute.

If there is no dispute over entitlement to SSP, ie where the employer admits entitlement to SSP but withholds all or part of it, then an employee may present a claim for unlawful deductions from wages instead (see 6.3).

6.6.7 Persons excluded from SSP

SSP will not be payable if the employee:

	is no longer sick;
	has reached the maximum entitlement to SSP, ie had 28 weeks of SSP from the employer during the period of incapacity or from a former employer where the last day in which SSP was paid by the former employer was within eight weeks of the current period of incapacity;
	has reached the end of the contract of employment (special provisions apply where the employer brings the contract to an end solely to avoid paying SSP);
	works abroad and the employer is not liable to pay national insurance contributions;
	is disqualified on maternity grounds. The maternity disqualification period for a woman whose baby is due after 1 April 2007 is for 39 weeks if receiving either Statutory Maternity Pay (SMP) or Maternity Allowance (MA). Payment of these starting no sooner than eleven weeks before the baby is due (ie from week 29 of the pregnancy) or the date the baby is born. Where a woman is not entitled to SMP or MA the maternity disqualification period is eighteen weeks. Legal advice should be sought by any woman off sick or planning to go off sick whilst pregnant as this may affect whether she will have satisfied earnings conditions to qualify for SMP. If a woman goes sick in the four weeks before her expected week of childbirth, maternity leave may be triggered but only if she is absent due to a pregnancy related reason;

Note: An expectant or new mother up until the baby is six months old or a breastfeeding mother (regardless of how old the child is) suspended from work due to risks to health and safety identified by a risk assessment may be entitled to full pay where the employer is unable to alter the employee’s working conditions or hours of work.

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