Rights of Employees

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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 sixteen or seventeen (who is not an apprentice): £3.40 per hour from 1 October 2007;

• for a worker aged eighteen to 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;

• 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

  • 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.  Previously, agency workers engaged by an agency for less than three months did not qualify but from October 2008 the rules have been changed to allow all agency workers to qualify for SSP.

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 employee 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.)

• has not actually started work with an employer under a contract of employment;

• is affected by a strike at work and has a direct interest in the outcome. Thus, if s/he falls ill during a strike, SSP is generally not payable;

• earns less than £90 per week;

• is in legal custody, whether convicted of an offence or not;

• is within eight weeks of a period of incapacity for work during which s/he received Severe Disablement Allowance or Incapacity Benefit (104 weeks if a Welfare to Work Beneficiary);

• is within eight weeks of a maternity disqualification period before or during which a period of incapacity had started.

It should be noted that the Fixed-term (Prevention of Less Favourable Treatment) Regulations (NI) 2002 have removed the bar on employees being entitled to SSP where the contract was for a fixed period of three months or less.

6.7 Stakeholder pensions

An employer who employs five people or more must provide access to a stakeholder pension scheme unless access to a suitable personal or occupational pension scheme is already being offered.

Unless otherwise agreed between the parties, the employer does not have to contribute to the stakeholder pension scheme but does have to ensure that there is at least one registered stakeholder pension scheme which offers membership to all relevant employees. 

The employer does not have to provide access to the scheme for employees whose earnings are below the national insurance lower earnings limit, £90 from April 2008 or who are unable to join the scheme because they are under eighteen or within five years of the scheme's normal retirement age. 

The regulator of work-based pension schemes is known as the Pensions Regulator and is based at Napier House, Trafalgar Place, Brighton, BN1 4DW, telephone 0870 6063636.

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7. HOURS, HOLIDAYS AND REST BREAKS

7.1 Governing legislation

The Working Time Regulations (NI) 1998 (the WT Regulations) were introduced to implement the EC Working Time Directive which lays down minimum conditions relating to weekly working time, rest entitlements and annual leave and make special provisions for working hours and health assessments in relation to night workers.

The WT Regulations also implement certain aspects of the EC Young Workers Directive relating to adolescent workers (ie above the minimum school leaving age but under eighteen).

The information in this section relates only to adult workers.

7.2 Entitlements and limits

The main entitlements and limits referred to in the WT Regulations provide for adult workers:

• a limit on the average weekly working time of 48 hours for each seven days;

• a limit on the average length of night work to eight hours in every 24 hour period;

• a limit on actual length of night work to eight hours in every 24 hour period where work involves special hazards or heavy physical or mental strain (note the difference in the limits referred to above which deal with average hours as opposed to actual hours in a specific period);

• a limit on assigning a worker to night work unless an opportunity of a free health assessment has been granted;

• a free health assessment at regular intervals for a night worker;

• a transfer to day work if possible by an employer on the advice of a GP;

• adequate rest breaks where the organisation of work is such as to put the health and safety of a worker at risk, in particular because the work is monotonous or the work rate is predetermined;

• a daily rest period of eleven consecutive hours in each 24 hour period; *

• an uninterrupted weekly rest period of not less than 24 hours in each seven day period; *

• an entitlement to an (unpaid) rest break of 20 minutes where the working day is more than six  hours; *

• a right to paid annual leave. *

The right to annual leave under the WT regulations is currently 4.8 weeks per year – that is 4.8 times the regular working week, eg 24 days for those on a five day week. The entitlement increases to 5.6 weeks on 1 April 2009. The maximum entitlement is 28 days.

The Department for Business, Enterprise and Regulatory Reform (BERR) has produced a holiday entitlement calculator to work out entitlement in transitional years, where the increase happens in the middle of the holiday year (see section 20 for details).

Please note that a contract can give a worker an entitlement to more holidays than the WT Regulations minimum.

The core four weeks’ entitlement must be taken within the leave year and cannot be ‘carried over’ (the additional 0.8/1.6 and any additional contractual entitlement can be carried over by agreement).  Until April 2009, an employer may make payment in lieu in respect of the additional 0.8 week’s pay.

7.3 Enforcement of limits and rights

Enforcement of the above (except the last four rights which are marked *) is the responsibility of the Health and Safety Executive or local district council.

The Health and Safety Executive (Enforcing Authority) Regulations (NI) 1999 lists the activities which determine whether local councils or the Health and Safety Executive will be the enforcing authorities. 

Broadly speaking, local councils are responsible for offices, catering services, hotels, sports, and retail premises.  The Health and Safety Executive is the enforcing agency for building and construction sites, colleges, schools, hospitals, quarries, fairgrounds and broadcasting studios. 

A failure to comply with any requirements which the Health and Safety Executive or a local council is responsible for is a criminal offence, punishable by a fine.

A worker may present a complaint to an industrial tribunal where the employer has refused to permit the worker to exercise the rights which are marked * above.  This must be done within three months of the breach. 

7.4 Detriment and dismissal for asserting WT rights

A worker also has the right not to be subjected to a detriment and dismissal of an employee will be unfair if it is for a reason connected with rights and entitlements under the WT Regulations.

Such a dismissal will be automatically unfair and an employee does not require any length of service to present a claim.

7.5 Exclusions and modifications

Until 1 August 2003, the WT Regulations did not apply at all to persons involved in:

• air, rail, road, sea, inland water ways and lake transport;

• sea fishing;

•  other work at sea;

• the activities of doctors in training.

However, due to legislative changes, professional advice should be sought if advising any of these classes of workers to assess whether such a worker is now excluded from the rights under the WT Regulations.

7.6 Opt out agreements

It is currently possible for workers to sign a written agreement to opt out of the 48 hour weekly maximum.

The agreement to opt out can be ended by the worker giving notice in writing.

The length of the notice required to opt out cannot be for a period of less than seven days or more than three months.

7.7 Domestic servants

Workers employed as domestic servants in a private household are excluded from the provisions relating to the 48 hour week, length of night work, health assessments, transfer to day work and breaks for monotonous work.

7.8 Modification or exclusion by agreement

A collective agreement or a workforce agreement may modify or exclude the provisions on daily and weekly rest periods, breaks and hours of work for night workers.

In such cases, if a worker is required to work during what would otherwise be a rest period, the employer is under a duty wherever possible to allow the worker to take an equivalent period of compensatory rest.

In exceptional cases where this is not possible, the employer is under a duty only to afford the worker such protection as may be appropriate in order to safeguard the worker’s health and safety.  

This applies to the following:

• where a worker’s activities are such that the place of work and place of residence are distant from one another or different places of work are distant from one another;

• where a worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons as may be the case for security guards and caretakers of security firms;

• where a worker’s activities involve the need for continuity of service or production as may be the case in relation to:

  • services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons;

  • work at docks or airports;

  • press, radio, television cinematography, postal and telecommunications and civil protection services;

  • gas, water and electricity production, transmission and distribution, household refuse collection  and incineration;

  • industries in which work cannot be interrupted on technical grounds;

  • research and development activities;

  • agriculture;

• where there is a foreseeable surge of  activity as may be the case in relation to agriculture, tourism and postal services;

• where the worker’s activities are affected by:

  • an occurrence due to unusual and unforeseeable circumstances beyond the control of the worker’s employer;

  • exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer;

  • an accident or the imminent risk of an accident.

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8. SUNDAY WORKING

The Shop (Sunday Trading & c.) (NI) Order 1997 provides for the rights of shop workers in relation to Sunday working.  Shop work has a specific definition and only includes any premises where retail trade or business is carried on.  The legislation applies to two different types of workers; protected shop workers and opted out shop workers.

A protected shop worker is an individual who was employed as a shop worker before 4 December 1997 who was not required under contract to work on a Sunday.  A protected shop worker cannot now be required to work on a Sunday unless s/he has given the employer a signed written opting in notice expressly stating that there is no objection from the worker to Sunday working.

An opted out shop worker is an individual who has at any stage provided her/his employer with an opted out notice.  An opted out notice is a written notice signed and dated by the shop worker which states that s/he objects to Sunday working.  It takes effect three months after the notice is given to the employer.

A shop worker who is subjected to a detriment or dismissed for asserting rights in relation to Sunday working can complain to an industrial tribunal within three months of the detriment or dismissal.

Since 26 February 2004, the Betting and Gaming (NI) Order 2004 provides similar rights to on course betting workers, guidance on the rights of shop workers and on course betting workers which can be accessed at www.delni.gov.uk/er.

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9. Time Off Provisions

9.1 Trade union and employee representatives’ rights

An employee has the right to be active in a trade union. The following rights are guaranteed by law:

• the right not to be refused employment because of trade union membership or lack of such membership;

• the right to a reasonable amount of paid time off for certain trade union duties and to attend trade union training if the employee is a trade union official;

• the right to a reasonable amount of paid time off for trade union representatives to perform their duties and attend relevant training;

• the right to a reasonable amount of unpaid time off for trade union activities (applies to an ordinary trade union member who is not an official);

•  the right not to be victimised because of trade union membership or activities;

• the right not to be dismissed because of  trade union membership or activities;

•  the right not to have unauthorised union subscriptions deducted from wages.

9.2 Unpaid time off

9.2.1 Trade union activities

As stated in 9.1 above, an employee who is a trade union member or representative is entitled to a reasonable amount of unpaid time off work to take part in activities of that trade union.

9.2.2 Time off for dependants

Article 85A of the 1996 Order provides for entitlement of an employee to take a reasonable amount of unpaid time off during working hours which is necessary:

1. to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted;

2. to make arrangements for the provision of care for a dependant who is ill or injured;

3. in consequence of the death of a dependant;

4. because of the unexpected disruption or termination of arrangements for the care of a dependant;

5. to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for that child.

An employee must tell the employer the reason for absence as soon as is reasonably practicable (and if able to, to tell the employer before the absence how long the absence is expected to last).

Dependant means a child, a parent or a person who lives in the same household as the employee, otherwise than by reason of being an employee, tenant, lodger or boarder.

For the purposes of a. and b. above, dependant also includes anyone who reasonably relies on the employee either for assistance on an occasion when the person falls ill, is injured, assaulted, or to make arrangements for the provision of care in the event of illness or injury.  For the purposes of d., dependant includes any person who reasonably relies on the employee to make arrangements for the provision of care. With regard to b., the right is to take time off to make arrangements for care, not to provide that care oneself over an extended period.

9.2.3 Flexible working

From 6 April 2003, the Employment (NI) Order 2002 made provision for parents of children aged under six or of disabled children aged under eighteen to have the right to apply to work flexibly.  From 6 April 2007, the right to request flexible working has been extended to employees who care for adults in need of care who are partners, relatives or who live at the same address. (Therefore there is currently no right to apply for flexible working for parents with children aged between six and eighteen, unless the child is disabled).

To qualify, an employee must have worked with the employer continuously for 26 weeks at the date the application is made and have or expect to have responsibility for a child or for an adult in need of care and be making the application to enable the employee to care for the child or the adult in need of care.

An employer can only refuse a request on specific grounds which are as set out in Article 112 G of the 1996 Order.  The only grounds for refusal are if the employer considers that one of the following applies:

• burden of additional costs;

• detrimental effect on ability to meet customer demands;

• inability to reorganise work among existing staff;

• inability to recruit additional staff;

• detrimental impact on quality;

• detrimental impact on performance;

• insufficiency of work during the periods the employee proposes to work;

• planned structural changes.

The initial onus will be on the employee to make an application in writing to the employer.  Only one application can be made per year.

Within 28 days, the employer should arrange to meet with the employee to explore the desired work pattern in depth and to consider alternatives.  The employer will then be expected to write within fourteen days of the date of the meeting either agreeing to a new work pattern and a start date or providing clear business grounds as to why the application cannot be accepted.

An employee who is dissatisfied with the decision will then have a right to appeal in writing within fourteen days of notification that the request has been refused.  A further meeting should be held within fourteen days to consider the appeal.  The appeal decision should then be given to the employee in writing within fourteen days of this meeting.

The employee is entitled to be accompanied by a work colleague to the initial meeting and/or the appeal.

It should be noted that there is no automatic right to be allowed to work flexibly.  An employee can only go to an industrial tribunal in specific circumstances such as the failure to follow the procedural requirements or where the employer’s decision to refuse the request was made on the basis of incorrect facts. Alternatively a resolution can be sought through the LRA arbitration scheme (see 19.12).

In certain circumstances a failure to allow flexible working may constitute unlawful sex discrimination (see 13.6).

9.2.4 Parental leave

Part III of the Maternity and Parental Leave etc Regulations (NI) 1999 entitles an employee who has been continuously employed by an employer for at least a year and who has or expects to have responsibility for a child to be absent from work on parental leave.

Altogether, an employee is entitled to thirteen weeks leave in respect of any individual child (or eighteen weeks if the child is entitled to Disability Living Allowance).

If an employee does not have provision in her/his contract which gives entitlement to be absent from work for the purposes of caring for a child and which operates by reference to or incorporates a collective or workforce agreement, default provisions used in the legislation will apply.  Under the default provisions:

• no more than four weeks leave can be taken in respect of one child in any year;

• parental leave may only normally be taken up until the child’s fifth birthday or if the child is entitled to Disability Living Allowance up to the child’s eighteenth birthday;

• leave may only be taken in blocks of a week (as opposed to single days here and there) unless the leave is taken in respect of a child who is entitled to Disability Living Allowance;

• the employee must give at least 21 days notice to the employer before leave is to commence, specifying the dates leave is to begin and end.

In addition, under the default provisions, the employer may postpone leave (other than leave to be taken when the child is born when the correct notice has been given).  The postponement can only be made if the employer considers that the operation of the business would be unduly disrupted if the employee took leave during the period requested.

To validly postpone leave, the employer must give the employee notice not more than seven days after receiving the employee’s notice.  The employer’s notice must specify a date which is within six months and has been determined by the employer after consultation with the employee specifying the dates agreed when the employee can take leave.

9.3 Paid time off  

An employee has rights to paid time off during working hours:

• to carry out certain duties, activities and training if an official or learning representative of an independent trade union (guidance is provided in the Code of Practice published by the Labour Relations Agency);

• to undertake study or training leading to a relevant qualification (defined in the Employment Rights (Time Off for Study or Training) (NI) Order 1998) if aged sixteen or seventeen (or eighteen if study or training began before aged eighteen) and s/he has not attained a specified standard of educational achievement;

• to perform duties as a Justice of the Peace or as a member of a district council, a statutory tribunal, relevant prison visiting authority, specified health body (eg a health and social services trust), relevant education body (eg an education and library board) or a district policing partnership;

• to attend an antenatal appointment when pregnant (medical evidence can only be requested by an employer if the employee fails to produce an appointment card or evidence from a medical practitioner after the first appointment);

• to perform duties or undergo relevant training as a trustee of an occupational pension scheme;

• to perform functions or undergo training in relation to being an employee representative for the purposes of collective redundancies or in respect of the transfer of undertakings legislation;

• to look for work or arrange training, if employed for two years or more and under notice of redundancy.  In such circumstances, payment ought to be made at the normal hourly rate but the total payment will not exceed 40% of a week’s pay.

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10. MATERNITY, PATERNITY AND ADOPTION

10.1 Maternity leave

The length of ordinary maternity leave is 26 weeks, regardless of how long a woman has worked for her employer.

10.1.2 Additional maternity leave

A woman whose expected week of childbirth (EWC) was before 1 April 2007 and who had completed 26 weeks continuous service with her employer by the fifteenth week before the expected week of childbirth (EWC) could take additional maternity leave.

 For women whose EWC falls on or after 1 April 2007, and for those who give birth after that date, additional maternity leave is available to all employees, regardless of length of service. If the EWC was after 1 April 2007 but the baby was born prematurely this right still applies.

Additional maternity leave starts immediately after ordinary maternity leave and continues for a further 26 weeks.

10.1.3 Employee’s notification

A pregnant employee is required to notify her employer of her intention to take maternity leave by the fifteenth week before her EWC, unless this is not reasonably practicable.  She needs to tell her employer that she is pregnant, the week her baby is expected to be born and when she wants her maternity leave to start. 

10.1.4 Varying the date of leave

A woman can change her mind about when she wants to start her leave providing she tells her employer at least 28 days in advance (unless this is not reasonably practicable).

10.1.5 Employer’s notification

On receipt of a woman’s notification, an employer must respond to the employee within 28 days.  The employer must write to the employee setting out the date on which the employer expects her to return to work if she takes her full entitlement to maternity leave, ie the end of her additional maternity leave.

10.1.6 Starting maternity leave

The earliest date at which maternity leave can start is the beginning of the eleventh week before the baby is due (or the date of an earlier birth).

10.1.7 Pregnancy related illness

If a woman is absent from work for a pregnancy related illness during the four weeks before the start of her EWC, her maternity leave will start automatically.

10.1.8 Compulsory maternity leave

An employee entitled to maternity leave must not work or be permitted to work by her employer during the period of two weeks beginning with the date of her confinement.

10.1.9 Maternity pay

Not everyone is entitled to be paid during maternity leave but many workers can be entitled if they meet the qualifying conditions below.

A woman who is entitled to Statutory Maternity Pay (SMP) or Maternity Allowance (MA) where EWC was before 1 April 2007 could receive payment for 26 weeks.

For women whose EWC falls on or after 1 April 2007 and for those who give birth after that date, the period of payment is extended to 39 weeks. If the EWC was after 1 April 2007 but the baby was born prematurely, this right still applies. Therefore, in practice, the period of payment will cover the first thirteen weeks of the additional maternity leave period.

The woman does not need to intend to return to work.

10.1.9.1 Statutory Maternity Pay

A woman continuously employed for 26 weeks by the same employer by the fifteenth week before the EWC and who has average weekly earnings (accredited to the eight weeks before this fifteenth week) of at least the lower earnings limit (£90 from April 2008) may be eligible for SMP.

A woman who qualifies for SMP is entitled to receive SMP from her employer at 90% of average weekly earnings for the first six weeks of the pay period.

Thereafter, she is entitled to a standard rate of SMP from her employer of £117.10 per week (for babies due or born on or after 2 April 2008) or 90% of a woman’s average weekly earnings if this is a lesser amount.

Rates of SMP usually change every year during April.

10.1.9.2 Maternity Allowance

A woman who does not qualify for SMP but who has earned on average £30 per week in at least thirteen of the 66 weeks up to the EWC and has been employed for 26 of those weeks may qualify for MA. 

If a woman qualifies for MA, she will receive £117.18 per week or 90% of her average weekly earnings, if this is less than £117.18 (from April 2008) from Incapacity Benefits Branch, Castle Court, Belfast.

The rate of pay usually changes every year during April.

10.1.10 Terms and conditions during ordinary maternity leave

During the 26 weeks of ordinary maternity leave, the employee continues to be employed and to benefit from the normal terms and conditions of employment other than the term or condition relating to remuneration.

10.1.11 Terms and conditions during additional maternity leave

During additional maternity leave, the employee will continue to benefit from certain contractual terms relating to redundancy rights, disciplinary or grievance procedures, notice period requirements, trust and confidence and to be bound by contractual terms relating to disclosure of confidential information, acceptance of gifts and participation in any other business.

For women whose EWC is on or after 5 October 2008, the law has been changed so that they continue to enjoy their normal terms and conditions of employment (bar the terms or conditions relating to remuneration) during AML.

10.1.12 Work during maternity leave

An employee whose EWC is on or after 1 April 2007 may carry out up to ten days work for her employer during her statutory maternity leave period without triggering the end of the maternity leave.

These ‘keeping in touch’ days are optional and should only be arranged by agreement. Any days worked do not extend the maternity leave period.

Employees are prohibited from working for two weeks after childbirth (see 10.1.8).

10.1.13 Returning to work during or at the end of maternity leave

A woman who intends to return to work at the end of her full maternity leave entitlement including additional maternity leave does not have to give any further notification to her employer.

To return to work before the end of her maternity leave, an employee whose EWC was before 1 April 2007 must give her employer 28 days notice of the date she wants to return to work.  A woman whose EWC falls on or after 1 April 2007 has to give eight weeks notice of intention to return.

An employee who is entitled to additional maternity leave but wants to return on the expiry of ordinary maternity leave (or when her entitlement to SMP runs out) should give the appropriate notice that she wants to return.

10.1.14 Terms and conditions after maternity leave

A woman returning from ordinary maternity leave is entitled to return to the same job, under the same terms and conditions as if she had not been absent.

An employee entitled to additional maternity leave has a right to return to the same job as she was employed in before her absence, or, where not reasonably practicable, to a job with at least the same terms and conditions as her old position, and of an equivalent or better status.

In the case of additional maternity leave, the position varies where an employee whose EWC was before 1 April 2007 works for an employer employing five employees or less. 

10.1.15 Detriment and dismissal

Dismissal of a woman who is pregnant or on ordinary or extended maternity leave on grounds of redundancy is automatically unfair if the employer has failed to offer her a suitable alternative vacancy. It is unlawful to subject a woman to a detriment and dismissal is automatically unfair if it is for a reason connected to her pregnancy or the fact that she has given birth or sought to avail of maternity leave or for a reason relating to the use of ‘keeping in touch days’.

However, if the EWC was before 1 April 2007 and if the employer employs less than six employees, there will not be an automatic unfair dismissal if it is not reasonably practicable for the employer either to allow the woman to return to the same job or to offer her a suitable alternative job.  This may, however, amount to an ordinary unfair dismissal if the employee has been employed for at least a year.

This small employer exemption has been removed for employees whose EWC falls on or after 1 April 2007.

10.2 Paternity leave

The Employment (NI) Order 2002 enables a person who has or expects to have responsibility for a child’s upbringing and who is the biological father of the child or the mother’s husband, civil partner or partner (whether of the same sex or otherwise) to take paternity leave.  To qualify, such a person must have been continuously employed by her/his employer for 26 weeks leading into the fifteenth week before the baby is due.

The paternity leave must be taken within 56 days of the actual date of birth of the child.  Only one period of paternity leave is available regardless of whether more than one child is born as a result of the same pregnancy.  The paternity leave can be up to two consecutive weeks.

10.2.1 Statutory Paternity Pay

An employee who has average weekly earnings above the lower earnings limit for national insurance purposes (£90 from 6 April 2008) may qualify for Statutory Paternity Pay (SPP) of £117.18 or 90% of average weekly earnings if this is less than £117.18, ie the same rate as the standard rate of SMP.

The rate of SPP usually changes every April.

10.2.2 Notification requirements

To avail of paternity leave, an employee is required to inform her/his employer of her/his intention to take paternity leave by the fifteenth week before the baby is expected unless this is not reasonably practicable.  In addition, the employee will need to tell the employer the week the baby is due, whether s/he wishes to take one or two weeks leave and when s/he wants the leave to start.

An employee will be able to change her/his mind about the date on which s/he wants the leave to start, provided that s/he tells her/his employer at least 28 days in advance unless this is not reasonably practicable.

The employee will also have to tell the employer at least 28 days in advance of the date s/he expects payments of SPP to start unless this is not reasonably practicable.

10.3 Adoption leave

10.3.1 Who is entitled to adoption leave?

Adoption leave is available to an employee where an approved adoption agency notifies the employee of a match with a child. To qualify, the employee has to have continuously worked for the employer for 26 weeks leading into the week in which s/he is notified of being matched with a child for an adoption.

Adoption leave and pay are not available in circumstances where a child is not newly matched for adoption, for example, when a step parent is adopting a partner’s child.

Adoption leave and pay are only available to one member of a couple where a couple adopt jointly.  The couple may choose which partner takes adoption leave.

10.3.2 Length of adoption leave

An employee will be entitled to up to 26 weeks ordinary adoption leave followed by up to 26 weeks additional adoption leave.  Only one period of adoption leave will be available regardless of whether more than one child is placed for adoption as part of the same arrangement. 

10.3.3 Earliest date leave can be taken

An individual can choose to start leave from the date of the child’s placement or from a fixed date which can be up to fourteen days before the expected date of placement.

10.3.4 Relationship with paternity leave and pay

The partner of the person who elects to take adoption leave may be entitled to paternity leave and pay.

10.3.5 Statutory Adoption Pay

Not all employees are entitled to Statutory Adoption Pay (SAP).  However, if they do qualify, Statutory Adoption Pay is payable for up to 39 weeks (where the child is expected to be placed for adoption after 1 April 2007) at the same rate as the standard rate for SMP (£117.18 from 1 April 2008) per week or 90% of average weekly earnings if this is less.

It is only paid to an employee who has average weekly earnings above the lower earnings limit for national insurance contributions (£90 from 6 April 2008) for the eight weeks ending with the week of being notified of a match for adoption. The rate of SAP usually changes every year in April.

10.3.6 Notification requirements - employee

An employee will be required to inform the employer of the intention to take adoption leave within seven days of being notified by an adoption agency that s/he has been matched with a child for adoption, unless this is not reasonably practicable.  The employee will also have to tell the employer when the child is expected to be placed with the employee and when s/he wants adoption leave to start.

An employee will be able to change her/his mind about the date on which s/he wants leave to start, provided the employer is told at least 28 days in advance, unless this is not reasonably practicable.

The employee will also have to tell the employer the date s/he expects any payments of SAP to start at least 28 days in advance, unless this is not reasonably practicable.

10.3.7 Notification requirements - employer

An employer will have to respond to an employee’s notification of leave within 28 days.  The employer will need to write to the employee setting out the date on which the employee is expected to return to work if the full entitlement to adoption leave is taken.

10.3.8 Returning during or at the end of adoption leave

An employee who intends to return to work at the end of full adoption leave (which includes additional adoption leave) will not have to give any further notification to her/his employer.

An employee who wants to return to work before the end of full adoption leave and whose child was expected to be placed for adoption before 1 April 2007 must give 28 days notice of the date s/he intends to return. If the child was expected to be placed for adoption after 1 April 2007, the employee must give eight weeks notice.

10.3.9 Terms and conditions during adoption leave

During ordinary adoption leave, an employee will be entitled to the benefit of normal terms and conditions of employment except for terms relating to wages or salary.

 During additional adoption leave, the employment contract continues and some contractual benefits and obligations will remain in force, similar to provisions on maternity leave (see section 10.1.11).

10.3.10 Work during ado ption lea ve

Where the child was expected to be placed for adoption after 1 April 2007 an employee may carry out up to ten days work during adoption leave. These ‘keeping in touch’ provisions are similar to provisions on maternity leave (see section 10.1.12).

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11. PART TIME WORKERS

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000 makes less favourable treatment of a part time worker in comparison with a comparable full time worker unlawful if the reason for the less favourable treatment is on the ground that the worker is a part time worker, unless there is an objective reason to justify such treatment.  

11.1 Written statement procedure

A worker who considers that the employer has treated her/him less favourably can request a written statement giving particulars of the reasons for the treatment from the employer.

The worker is entitled to be provided with the employer’s statement within 21 days of the request.  An adverse inference can be drawn by an industrial tribunal for a failure to provide a written statement or if the statement is evasive or equivocal. 

11.2 Complaints to an industrial tribunal

A complaint in respect of unfavourable treatment or failure to provide a written statement can be made to an industrial tribunal within three months of the treatment or failure respectively.

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12. FIXED TERM WORKERS

12.1 Less favourable treatment

The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 makes less favourable treatment of fixed term employees than comparable permanent employees on the grounds of their fixed term status unlawful unless there is an objective reason to justify such treatment. 

12.2 Less favourable terms and conditions

A fixed term employee has the right not to be treated less favourably as regards the terms of the contract or by being subjected to any other detriment by any act or deliberate failure to act of the employer.

This includes the right not to be treated less favourably in relation to any period of service qualifications or in respect of the opportunity to receive training.

12.3 Right to be informed of available vacancies

A fixed term employee also has the right not to be treated less favourably in relation to the opportunity to secure permanent employment in the establishment.

In this respect, a fixed term employee has the right to be informed of available vacancies in the establishment by her/his employer.  For the employer to have informed of such vacancies, it is enough if the vacancy is contained in an advertisement which the employee has a reasonable opportunity of reading in the course of employment.

12.4 Written statement procedure

A fixed term employee who feels less favourably treated than a comparable permanent employee may submit a request in writing to the employer for a written statement of the reasons for the treatment.

The employer must provide such a statement within 21 days of the request.  Failure to provide a statement or an evasive or equivocal reply can lead the tribunal to draw an adverse inference if proceedings are subsequently issued.

12.5 Series of fixed term contracts

The Regulations also provide that where a fixed term employee who has been continuously employed on fixed term contracts for four years or more is re-engaged on a fixed term contract, the new contract will be regarded as a permanent contract unless the renewal on a fixed term basis was objectively justified.

The four year period has to be after 10 July 2002.  Therefore, this clause applies to employees who have four years service after that date.

12.6 Complaints to an industrial tribunal 

A complaint of less favourable treatment can be made to an industrial tribunal within three months of the treatment.

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13. DISCRIMINATION

There is no general prohibition against discrimination in the workplace.  Legislation is in place which protects actual or potential employees in Northern Ireland against discrimination if they have a disability or on racial grounds, or because of religious belief or political opinion, sex, pregnancy, sexual orientation, gender reassignment, married or civil partnership status, or age.

Consultation has taken place on a single Equality Bill which thankfully aims to harmonise existing anti-discrimination and equality legislation as far as is practicable and which, when implemented, will update and extend existing provisions. No firm date has been set for implementation.

13.1 Equality Commission for Northern Ireland

The Equality Commission for Northern Ireland (ECNI) was established by the Northern Ireland Act 1998.  This body is responsible for promoting equality of opportunity in Northern Ireland and exercises the functions of the former Equal Opportunities Commission, Fair Employment Commission, Commission for Racial Equality and Disability Council.

The Commission can provide advice and assistance to people who believe they have been discriminated against. In addition, it has important responsibilities regarding the ‘Section 75’ statutory duty on all public bodies to have due regard to the need to promote equality of opportunity across the areas of religion, political opinion, gender, race, age, marital status, sexual orientation, disability and those with and without dependants.

The Commission provides useful information on discrimination on its website (see section 20).

13.2 Religious or political discrimination

The Fair Employment and Treatment (NI) Order 1998 makes it illegal for an employer to discriminate, either directly or indirectly, on the grounds of religious belief or political opinion in matters of employment, including recruitment, selection and promotion.

Complaints of religious or political discrimination are dealt with by Fair Employment Tribunals.

The Fair Employment and Treatment Directorate of the ECNI will provide advice, information and sometimes fund legal representation for individuals in relation to alleged political or religious discrimination.

13.3 Sex, marital or pregnancy discrimination

The Sex Discrimination (NI) Orders 1976 and 1988 make it unlawful for an employer to discriminate, either directly or indirectly, on the grounds of sex, marital or civil partnership status or pregnancy in matters of employment, including recruitment, selection and promotion.  The protection in relation to marital status does not apply to unmarried persons.

Complaints of sex discrimination are dealt with by industrial tribunals.

The Sex Equality Directorate of the Equality Commission will provide advice and information, and sometimes fund legal representation for individuals in relation to alleged sex discrimination.

13.4 Race discrimination

The Race Relations (NI) Order 1997 makes it unlawful for an employer to discriminate, directly or indirectly, on racial grounds (ie colour, race, nationality or ethnic or national origin) or on the grounds of a racial group (ie a group of persons defined by reference to colour, race, nationality or ethnic or national origin).

References to a person’s racial group refer to any racial group into which s/he falls. The Irish travelling community is specified to be such a group.

Protection covers all employment matters, including recruitment, selection, terms and conditions, training, promotion and dismissal.

As with other issues of discrimination, an employee who feels s/he has been discriminated against can lodge proceedings with the industrial tribunal.

The Race Discrimination Directorate of the Equality Commission may provide advice and assistance and fund legal representation for a person who alleges s/he has been unlawfully discriminated against on the grounds of her/his race.

13.5 Disability discrimination

The Disability Discrimination Act 1995 (DDA 1995) makes it unlawful for an employer to discriminate against an employee or job applicant on the grounds of disability.

This includes discrimination in the arrangements for deciding to whom to offer employment, in refusing to offer a position, in terms of employment offered, in access to opportunities for promotion, transfer, training or other benefits or dismissal and any other detriments.

Discrimination for the purposes of the DDA 1995 is less favourable treatment which relates to a person’s disability and which an employer is unable to show is justified. By implication, therefore, an employer may - unlike the case with direct sex, religious, political or race discrimination - be able to show that the discrimination is justified.

The legislation protects an individual from being victimised because s/he has made a complaint or allegations of discrimination or because s/he has been involved in such a complaint, for example, by helping someone else. It also outlaws harassment related to the disabled person’s disability and imposes a duty on employers to make reasonable adjustments for disabled employees and applicants.  It is not possible to justify victimisation, harassment or the failure to make reasonable adjustments.

A person has a disability for the purposes of the DDA 1995 if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on her/his ability to carry out normal day-to-day activities. Note that the requirement that a mental impairment be clinically well recognised was removed from 31 October 2007.

Special provisions exist to cover progressively deteriorating conditions, recurring or fluctuating conditions and severe disfigurements. Since 31 October 2007, a person with HIV, cancer or multiple sclerosis is considered to be disabled from the point of diagnosis.

The effect of an impairment is long-term if it:

• has lasted at least twelve months; or

• is likely to last at least twelve months; or

•  is likely to last for the rest of the individual’s life; or

• is likely to recur.

An impairment will be taken to affect the ability of the individual to carry out normal day-to-day activities only if it affects one of the following:

• mobility;

• manual dexterity;

• physical co-ordination;

• continence;

• ability to lift, carry or otherwise move everyday objects;

• speech, hearing or eyesight;

• memory or ability to concentrate, learn of understand; or

• perception of the risk of physical danger.

The DDA 1995 states that in determining whether it is reasonable for an employer to have to take a step to comply with the duty to make reasonable adjustments, regard should be had to:

• the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

• the extent to which it is practicable for the employer to take the step;

• the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of her/his activities;

• the extent of her/his financial and other resources;

• the availability to the employer of financial or other assistance with respect to taking the step;

• the nature of her/his activities and the size of her/his undertaking.

The DDA 1995 also gives examples of steps which an employer may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments. These are examples and not an exhaustive list. The examples are:

• making adjustments to premises;

• allocating some of the disabled person’s duties to another person;

• transferring the employee to fill an existing vacancy;

• altering the employee’s hours of work or training;

• allowing the employee to be absent during working or training hours for rehabilitation, assessment or treatment;

• giving or arranging for mentoring (whether for the disabled person or any other person);

• acquiring or modifying equipment;

• modifying instructions or reference manuals;

• modifying procedures for or assessment;

• providing a reader or interpretation;

• providing supervision or other support.

A code of practice for the elimination of discrimination in employment which further explains the provisions of the DDA 1995 is available.

The employment provisions did not previously apply to employers with fewer than fifteen employees. As a result of changes made by the Disability Discrimination Act 1995 (Amendment) Regulations (NI) 2004 repealing the small business exemptions, the provisions now apply to all employers regardless of size.

If an employee believes that s/he has been discriminated against as a result of her/his disability, s/he can make a complaint to the industrial tribunal, which must be made within three months of the alleged infringement of the Act. The statutory grievance procedures discussed in section 5 are relevant to such a claim.

The Disability Directorate of the Equality Commission can provide advice and information and sometimes fund legal representation for individuals in relation to issues of disability discrimination.

13.6 Sexual orientation discrimination

Since 2 December 2003, when the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 came into force, it has been unlawful for an employer to discriminate, either directly or indirectly, on the grounds of sexual orientation in matters of employment, including recruitment, selection and promotion.

Sexual orientation includes orientation towards persons of the same sex, orientation towards persons of the opposite sex and orientation towards persons of the same sex and of the opposite sex.

It may not be unlawful to discriminate in relation to certain jobs where there is a ‘genuine occupational requirement’, notably in relation to employment for the purposes of an organised religion.

The Equality Commission (NI) (ECNI) may provide advice and information and may fund legal representation for a person alleging discrimination on the grounds of sexual orientation.

13.7 Age discrimination

The Employment Equality (Age) Regulations (Northern Ireland) 2006 came into operation on 1 October 2006, making it unlawful to discriminate directly or indirectly on grounds of age in the employment field.

Unlike other discrimination legislation, it is possible to justify both direct and indirect discrimination on grounds of age. Certain age related differential treatment (eg the National Minimum Wage age bands) is expressly permitted. The regulations also establish a retirement mechanism that allows employers to retire employees above the age of 65.  This provision is to be challenged before the European courts.

The Equality Commission may provide advice, assistance and possibly legal representation to a person alleging discrimination on grounds of age.

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14.  WHISTLEBLOWING

The Public Interest Disclosure (NI) Order 1998 inserts provisions into the 1996 Order which seek to protect workers from disclosing information relating to certain wrongdoing.

14.1 Qualifying disclosure

A qualifying disclosure is information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:

• that a criminal offence has been committed or is likely to be committed;

• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which s/he is subject;

• that a miscarriage of justice has occurred, is occurring or is likely to occur;

• that the health or safety of any individual has been, is being or is likely to be endangered;

• that the environment has been, is being or is likely to be damaged;

• that information tending to show any matter falling within any one of the above is being or is likely to be deliberately concealed.

14.2 Protected disclosure

To be a protected disclosure, the qualifying disclosure must be made:

• to the worker’s employer (or, where the information relates to the conduct of  another person for which a person other than the employer has legal responsibility, to that other person); or

•  in the course of obtaining legal advice; or

• in good faith to a Minister of the Crown or a Northern Ireland Department where the worker’s employer is an individual or a body appointed under any statutory provision by a Minister of the Crown or a Northern Ireland Department; or

• to a person prescribed by an Order made by the Department for Employment and Learning (a prescribed person) for the purposes of receiving qualifying disclosure information of relevant categories (see the Public Interest Disclosure (Prescribed Persons) (amendment) Order (NI) 2006); or

• where the worker makes the disclosure in good faith and not for purposes of personal gain to a person other than as described above. It must be reasonable for the worker to make the disclosure. In assessing whether it is reasonable to make the disclosure, regard will be had to:

  • the identity of the person to whom the disclosure is made;

  • the seriousness of the relevant failure;

  • whether the relevant failure is continuing or likely to occur in the future;

  • whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person.

Regard may also be had to any action which the employer (or a person to whom a previous disclosure was made) has taken or might reasonably have been expected to have taken as a result of a previous disclosure and whether the worker complied with any procedure authorised by the employer.  In such circumstances, to be protected the disclosure must satisfy the following conditions:

• that the worker reasonably believes, at the time of making the disclosure, that s/he will be  subjected to a detriment by the employer if disclosure is made to the employer or a prescribed person;

• in cases where there is no prescribed person, the worker reasonably believes that evidence relating to the wrong doing will be concealed or destroyed if a disclosure is made to the employer;

• the worker has previously made a disclosure of substantially the same information to the   employer or a prescribed person; or  

• in good faith and not for personal gain, if the worker believes the information to be substantially true and the failure is of an exceptionally serious nature and in all the circumstances it was reasonable to make the disclosure.  In assessing reasonableness, regard will be had to the identity of the person to whom the disclosure is made.

14.3 Unfair dismissal and detriment

Workers have a right not to suffer detriment in employment and employees have a right not to be unfairly dismissed for making protected disclosures.  Such a dismissal will be automatically unfair and not be subject to a qualifying period of continuous employment.

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15.  EMPLOYMENT PROTECTION IN HEALTH AND SAFETY CASES 

An employee has the right not to be subjected to a detriment and a dismissal will be automatically unfair if the reason for dismissal is because s/he:

•  carried out activities after being designated by the employer to prevent or reduce risks to health and safety at work;

• performed functions as a representative of workers on health and safety matters or being a member of a safety committee or having taken part in consultation with the employer or in an election pursuant to the Health and Safety (Consultation with Employees) Regulations 1996;

• brought to the employer’s attention, by reasonable means, circumstances connected with work which s/he reasonably believed were potentially harmful to health and safety, where it was not reasonably practicable to raise matters with the health and safety representative or safety committee;

•  left or proposed to leave or refused to return to a dangerous part of the workplace while the danger persisted, in circumstances of danger which s/he reasonably believed to be serious and imminent and which could not reasonably be averted by her/him;

• took or proposed to take appropriate steps to protect her/himself or other persons from danger in circumstances of danger which s/he reasonably believed to be serious and imminent.

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16. TERMINATION OF EMPLOYMENT

16.1 Notice to terminate employment

To bring a contract to an end, a contract of employment can specify how much notice is to be provided to terminate it.  It is lawful for an employee to accept pay in lieu of notice.

Whilst a contract can provide for longer periods of notice, it cannot provide for a shorter period of notice than the minimum period specified in article 118 of the 1996 Order. According to article 118, the minimum period to be given by an employer to an employee (except in cases of dismissal for gross misconduct where no notice is required to be given) is as follows.

Then one additional week for each additional year’s continuous service up to a maximum of twelve weeks in total.

An employee employed for one month or more is obliged under article 118 to provide at least one week’s notice to the employer.

The contract of employment may provide for greater notice periods.  If it does, an employee or employer may be acting in breach of contract in failing to adhere to its provisions.

16.2 Wrongful dismissal

If an employer dismisses an employee and fails to provide notice in accordance with the contract or statutory notice provisions, the employee may be able to claim damages for wrongful dismissal. This should not be confused with unfair dismissal which is a statutory creation (see 16.4).

A wrongful dismissal claim normally arises due to a breach of an express or implied term to provide notice to lawfully end the contract of employment. Damages will normally be limited to wages and other benefits payable during the notice period.

Breach of contract claims can be brought in an industrial tribunal provided the contract is connected with employment and the employment has ended.

A claim for breach of contract in an industrial tribunal must normally be brought within three months of termination of the contract (although see section 5 in relation to where the statutory grievance procedures are being followed). An employer may counterclaim against the employee within six weeks of receiving a copy of the employee’s claim.  The value of the employer’s counterclaim may be worth substantially more than the employee’s claim.

The maximum award a tribunal can make in a breach of contract claim is £25,000.

Claims can also be brought in the ordinary civil courts, such as the county court or the high court, for breach of contract.  The time limit in the ordinary civil courts for bringing a claim is six years from the date of the breach of contract.

Caution should be exercised in deciding where to issue proceedings.  ‘Cause of action estoppel’ may prevent an employee pursuing a claim in the county court or the high court if a case has been determined by an industrial tribunal.

16.3 Statement of reasons for dismissal

Article 124 of the 1996 Order enables an employee to be provided with a written statement giving particulars of the reasons for dismissal.

The employee is normally only entitled to a written statement if s/he has been employed for one year at the date of dismissal and has requested the statement.  Where the statement is requested, it must be provided by the employer within fourteen days.

An employee who is dismissed whilst pregnant or during ordinary or additional maternity or adoption leave is automatically entitled to a written statement without having to request it and irrespective of how long she has actually been employed.

If the employer fails to provide a written statement or if the reasons are inadequate or untrue, a tribunal can award up to two weeks pay and make a declaration as to what it finds the employer's reasons were for dismissing the employee. The tribunal can only consider such a complaint if it is presented at the same time as a complaint of unfair dismissal.

16.4 Unfair dismissal

Protection against unfair dismissal is established in article 126 of the ERO.

16.4.1 Exclusions from the right

An employee cannot claim unfair dismissal if s/he is:

• a police officer, unless dismissal relates to an automatic unfair dismissal in a health and safety case (see section 15);

• in any employment in respect of which there is a designated dismissal procedure (agreed with unions and approved by the Department for Employment and Learning);

• a share fisherman;

• taking part in unofficial industrial action.

16.4.2 Length of service requirements

An employee must normally have been employed by the employer for at least one year before being able to claim unfair dismissal.

This length of service requirement does not apply if the dismissal is deemed to be an automatic unfair dismissal (see 16.4.6).

16.4.3 What is a dismissal?

An employee is dismissed if:

• the contract is terminated by the employer;

• s/he is employed under a fixed term contract which expires without renewal;

• s/he terminates her/his own contract but can show that the employer's conduct entitled the employee to do so (constructive dismissal).  Specialist advice should be sought before such a termination because an employee who resigns may be deemed not to have been dismissed but to have left voluntarily if a tribunal finds there was not a constructive dismissal.

16.4.4 What is unfair dismissal?

When an employee establishes that there has been a dismissal, or if this is not disputed by the employer, it is then up to the employer to show the reason for the dismissal.

At present the dismissal will be regarded as unfair unless the employer can prove that the dismissal was for one of the following reasons:

• the employee was incapable of doing her/his job (eg due to incompetence, inadequate qualifications, ill health, etc);

• the employee was guilty of misconduct (eg bad timekeeping, dishonesty, fighting at work, etc);

• the employee is being made redundant;

• the employee could not have been kept on without the law being broken (eg a driver loses her/his driving licence);

• there is some other substantial reason justifying dismissal;

• retirement is a potentially fair reason for dismissal provided the employee is aged 65 or over and the requisite legal steps in relation to retirement have been complied with (see section 13.7).

16.4.5 Reasonableness of the dismissal

Even if the employer can show that the dismissal was for one of the above reasons, the tribunal must go on to consider whether the employer acted in a reasonable way in treating the reason as sufficient for dismissing the employee. In deciding whether the employer acted reasonably, a tribunal must take into account the size and administrative resources of the employer's firm.

On questions of reasonableness, the Labour Relations Agency (LRA) has prepared a Code of Practice on disciplinary and grievance procedures which came into effect on 3 April 2005.  Industrial tribunals will generally expect employers to comply with it.

16.4.6 Automatic unfair dismissals

Dismissal of an employee for certain specified reasons is automatically unfair.  In such circumstances, the tribunal will not have to look into the reasonableness or otherwise of the dismissal.  Selection of an employee for redundancy on such specified grounds may also make the dismissal automatically unfair.  Likewise, for certain dismissals, an employee will not require any length of qualifying employment and upper age limits which prevent employees claiming unfair dismissal will not apply. 

This applies to the following dismissals:

• dismissal for certain family friendly related reasons, including the fact that the employee was pregnant, has given birth or has or is going to take maternity leave, parental leave, time off under the dependants provisions, paternity leave or adoption leave or for a reason related to ‘keeping in touch’ days (see section 10);

•  dismissal for health and safety related reasons (see section 15);

• dismissal for performing a role as a trustee of a pension scheme or as an employee representative for the purposes of a transfer of an undertaking or in relation to a collective redundancy situation;

• dismissal of a protected or opted out shop worker or on course betting worker in connection with Sunday working (see section 8);

• dismissal in relation to rights under the Working Time Regulations (NI) 1998 (see section 7);

• dismissal for asserting rights under the National Minimum Wage Act 1998 (see 6.1);

• dismissal in respect of protected public interest disclosures (see section 14);

• dismissal in relation to the right to be accompanied at disciplinary and grievance hearings (see section 17);

• dismissal for asserting rights as a part time worker( see section 11);

• dismissal due to enforcing rights under the Tax Credits Act 2002;

• dismissal for asserting rights as a fixed term worker (see section 12);

• dismissal for asserting statutory rights conferred under the 1996 Order or the rights in relation to statutory minimum notice, deductions from pay, union activities and time off and rights under the Working Time Regulations 1998;

• dismissal for trade union membership or activities (see 9.1);

• dismissal for a reason related with the statutory right to apply for flexible working (see 9.2.3).

An employee who has been employed for a year will be treated as automatically unfairly dismissed if the employer dismisses her/him without following the statutory dismissal and disciplinary procedures unless one of the exceptions applies (see section 5).  The employer will escape a finding of unfair dismissal if s/he can show that s/he would have dismissed the employee even if s/he had followed the statutory procedures.

Failure to follow the statutory retirement procedures can also give rise to an automatic unfair dismissal.

16.4.7 Remedies for unfair dismissal

A person who is claiming unfair dismissal must identify which remedy s/he is seeking ie her/his job back (reinstatement), re-engagement or compensation.

16.4.7.1 Reinstatement

This takes effect as if the person had never been dismissed. Therefore, this involves full restoration of pay and other benefits, seniority and pension rights etc.

16.4.7.2 Re-engagement

This occurs in situations where the tribunal thinks that reinstatement is not practicable. It allows the employer to offer the employee a different but comparable job, or other suitable job.

16.4.7.3 Compensation

Compensation is normally made up of a basic award and a compensatory award.  The basic award is similar to calculation of a redundancy payment (see 18.1), related to the person's length of service, age and wages.  The compensatory award is based on loss of earnings for the period up to the tribunal hearing and any anticipated future loss.

The compensation may be reduced if the employee is found by the tribunal to be partially to blame for her/his own dismissal.

From 4 February 2008, a person can claim up to £63,000 as part of the compensatory element of her/his award. This maximum amount is usually increased annually. In practice, awards are normally for much smaller amounts.

From 3 April 2005, the Employment (NI) Order 2003 implemented provisions whereby compensation can be increased or reduced if statutory disciplinary or dismissal procedures are not followed internally before presenting an application to an industrial tribunal (see section 5).

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17. RIGHT TO BE ACCOMPANIED

Articles 12-17 of the Employment Relations (NI) Order 1999 make provision for a worker to be accompanied by a fellow worker or a trade union official to a disciplinary or a grievance hearing where this is reasonably requested by the worker.

Where the chosen companion is not available, the employer must postpone the hearing to an alternative time proposed by the worker (provided the alternative time is reasonable and falls within five working days).

A worker is protected against being subjected to a detriment and dismissal is automatically unfair if the reason for dismissal is because the employee sought to exercise the rights of accompaniment or postponement or to accompany a fellow worker as a companion.  No qualifying period of continuous service will be required to claim unfair dismissal in these circumstances.

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18. Redundancy

Pursuant to article 174 of the ERO, redundancy occurs where an employer ceases to carry on business in a particular place (although the employee may be required by contract to move with the employer), or where the requirement of the business to carry out work of a particular kind ceases or diminishes.

In most cases, a simple definition of redundancy is that the employee's job no longer exists.  If the employee has been replaced by another employee, it is not a redundancy. Where the replacement is an outside contractor this may still constitute redundancy.

If an employee is made redundant, s/he will be entitled to compensation known as a redundancy payment and sometimes will also be able to claim unfair dismissal (see 16.4 and 18.3).

18.1 Redundancy payments

These are paid by the employer. If the employer is bankrupt or in liquidation, the government may pay a redundancy payment out of the National Insurance Fund which is under the control of the Department for Employment and Learning.

18.1.1 Who may claim a redundancy payment?

Prior to 1 October 2006, to be eligible for a statutory redundancy payment, an employee must have been working for the same employer for at least two years since s/he was eighteen and must be under retirement age and not in certain jobs (including registered dock workers and Crown employees) which are excluded.

Changes introduced by the Employment Equality (Age) Regulations 2006 now enable service when under eighteen years and beyond retirement age to be recognised when calculating redundancy payments, but an employee must have a minimum of two years service.

18.1.2 How much is a redundancy payment?

The law guarantees a minimum redundancy payment, which is calculated by reference to the employee's age and length of service, as below:

• half a week's gross pay for each year up to the age of 21;

• one week's gross pay for each year between ages 22 and 40;

• one and a half week's gross pay for each year over the age of 41.

A ready reckoner for calculating the number of weeks due can be found on the Department for Business Enterprise and Regulatory Reform website www.berr.gov.uk, under ‘employment matters, redundancy’. By checking the employee’s age and number of complete years of service, it is possible to show the number of weeks pay which is due.

From 4 February 2008, the maximum wage which may be taken into account is £330. This maximum wage usually increases annually. The maximum number of years which may be taken into account is 20. The 20 best years will count; therefore, the maximum statutory payment is presently £9,900 (ie £330 x 20 x 1½).

The employee is entitled to a written statement showing how her/his redundancy payment has been calculated.

Note: An employee may have entitlement to a much larger redundancy payment provided for by agreement as a result of individual or collective negotiations.

18.2 Suitable alternative employment

If an employee is being made redundant, the employer may offer her/him any suitable alternative employment within the firm. The employee may in certain circumstances refuse if the proposed employment is not suitable. However, an unreasonable refusal of suitable employment may mean the employee will lose her/his entitlement to the redundancy payment.

18.3 Unfair dismissal and redundancy

If an employee is being dismissed on the grounds of redundancy, s/he may still claim unfair dismissal in any of the following situations:

• there is not a genuine redundancy situation (eg a new employee has been taken on to do the job);

• the employee was dismissed unfairly in all the circumstances contrary to article 130 of the Employment Rights Order (NI) 1996 (ie inadequate consultation, unfair application of selection criteria, failure to consider offering alternative employment);

• the employee was selected because of automatically unfair reasons (see 16.4.6).

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19. BRINGING A CLAIM

Overall responsibility for industrial tribunals and employment law rests with the Department for Employment and Learning (DEL). Day to day responsibility for the running of the industrial tribunals is administered by a president (Ms McBride) who is assisted by a vice president (Ms Smith).

The Office of Industrial Tribunals is situated at Longbridge House, 20-24 Waring Street, Belfast.  All documents and correspondence should be addressed to this office.

19.1 How and where to bring a claim

Industrial tribunals are the principal venue for adjudicating on disputes in employment law.

The aim of setting up the tribunal system was to provide an informal venue where decisions could be quickly granted and each party could be represented in person. However, the increase in statutory rights created by domestic and EC legislation has meant that the law governing the employment relationship has become more complex.  This has made it difficult in practice for a person to effectively present a case without legal representation. 

19.2 Legal aid

Legal aid is available under the Green Form Scheme but only for advice and assistance of up to two hours unless an extension is granted by the Legal Services Commission (formerly the Legal Aid Department). It is not normally available for representation in an industrial tribunal. Therefore, individuals must normally pay for legal representation themselves unless a trade union, the Equality Commission or some other organisation is prepared to meet the costs of or provide legal representation.

The terms of any household or other insurance policy are worth checking as occasionally these can cover the costs of an industrial tribunal case provided the terms of the policy are adhered to, for instance in relation to seeking the authority of the insurance company in advance of any claim.

19.3 Rules of procedure

Industrial tribunals are constituted under the Industrial Tribunals (NI) Order 1996.  The rules of procedure governing conduct up to and during the hearing are now contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005.  Schedule 1, known as the Industrial Tribunals Rules of Procedure, is the set of rules which is applicable to most claims.

The tribunal is not subjected to any formal rules of evidence and is enjoined to seek to avoid formality.  However, by convention, certain formalities do exist in tribunals.  For instance, the usual procedure is for a party on whom the burden of proof rests to open the case.  Thus, for example, in unfair dismissal cases, the employer has to prove the reason for dismissal and should go first.  The opening party normally then gives evidence and is cross-examined and calls her/his witnesses who are also cross examined. The other party then does likewise, before making a closing speech.  The party who opened then normally makes a closing speech.

19.4 The claim form

A person wishing to start a claim (the claimant) must present a claim to the Office of the Industrial Tribunals.  There is no fee payable to the tribunal office for lodging the claim form.

From 1 October 2005, the new version of form IT1 should be used to present a claim to an industrial tribunal. It can be obtained from a local Jobmarket or the Office of Industrial Tribunals. It is now possible to submit an IT1 online at www.employmenttribunalsni.co.uk.

19.5 Time limits

All claims to the industrial tribunal must be presented within a specific time.  For instance, in a case of unfair dismissal, the case must be with the Office of Industrial Tribunals within three months of the effective date of termination of employment (unless the statutory procedures referred to in section 5 of the notes apply).

If the claim is not presented within the prescribed time limit, the tribunal cannot consider the claim unless it can be persuaded to exercise the limited discretion granted by statute to extend time.  The tribunal rarely extends time unless there is a very good reason to.

19.6 The response

When the claim is received by the tribunal, it is entered in a public register.  A copy is then forwarded, together with a standard Form IT2, to the respondent with an enclosed blank response, Form IT3.

If the respondent wishes to defend the application, s/he must complete and return the response within 28 days of being sent a copy of the claim, setting out on what grounds s/he intends to resist the claim.

19.7 Conciliation

The claim and response are copied to the Labour Relations Agency (LRA).

The LRA is granted power under the Industrial Relations (NI) Order 1992.  Its duties are to promote the improvement of industrial relations.  The LRA has officers (known as Conciliation Officers) who seek to conciliate between the applicant and respondent if so requested.  Anything said to a Conciliation Officer cannot be disclosed to the tribunal without the consent of the person issuing the communication.

Most claims are settled after involvement of a Conciliation Officer and relatively few proceed to hearing. 

19.8 Management of proceedings

An industrial tribunal can make various orders in advance of a hearing to allow clarification of any issues in the claim or response. An industrial tribunal can make an order on the application of a party or of its own motion.

Under the new 2005 Rules, a tribunal has wide powers to manage the progress of cases by giving directions and setting timetables.

Examples of orders which may be made are orders:

• as to the manner in which proceedings are to be conducted, including any time limit to be observed;

• that a party provide additional information;

• requiring the attendance of any person in Northern Ireland to give evidence and to produce documents or information;

• requiring the provision of written answers to questions put by the tribunal;

• that a witness statement be prepared or exchanged;

• as to the use of experts or interpreters in the proceedings.

19.9 Notice of hearing

The date of the hearing must be sent at least fourteen days in advance to the parties by the Office of Industrial Tribunals.  In practice, the tribunal nearly always gives much greater notice than this.

Whilst a tribunal has discretion to postpone a hearing, there is no automatic right to a postponement, even if both parties agree.

19.10 Preparation of bundles

Often, documentary evidence will need to be placed before the tribunal.  For instance, the claimant may wish to rely on a term in the contract of employment or to produce evidence of jobs applied for, earnings and social security benefits claimed since the loss of employment.

It is helpful to produce a written index listing documents to be relied on for ease of reference during the tribunal hearing.

Normally, at least five copies of the documents to be relied on should be produced.  These are for the witness, the three members of the tribunal panel and the opponent’s representative.

19.11 The hearing

Many, although not all, hearings are heard in the Office of Industrial Tribunals in Waring Street, Belfast.

There, the parties sit with their representatives at a large table in modern rooms.  At a slightly raised position in front of the table sits the tribunal panel.  This is normally comprised of three persons; a legally qualified chairperson and two lay members.  One of the lay members is chosen from a panel appointed after consultation with organisations representative of employers and the other from a panel appointed after consultation with organisations representative of employees. 

Hearings are conducted in public. Tribunals may sit in private, in certain cases if, in their opinion, evidence of matters is to be given which would be against the interests of national security to be heard in public.  The tribunal may also sit in private where evidence may consist of information which could not be disclosed without a breach of a statutory prohibition or which has been communicated or obtained by a witness in confidence or which, if publicly disclosed, could substantially damage a witness’s undertaking for commercial reasons.

19.12 Voluntary arbitration

An alternative route for resolving unfair dismissal and flexible working claims is by voluntary arbitration through the LRA.

The scheme was introduced by the Labour Relations Agency (Arbitration) Scheme Order (NI) 2002 which came into operation on 28 April 2002.  It is currently limited to determination of whether a dismissal is unfair and resolution of disputes regarding flexible working.

Access to the scheme can only be made if both parties agree in writing.  There is no power to order a disclosure of documents or attendance of witnesses.  The parties are required to submit written statements of the case together with accompanying documentation at least fourteen days before hearing.  The hearing is heard in private.  Whilst legal representatives can attend, they are not awarded any special status.  There is no cross examination.  Instead questions can be put through the arbitrator.  Awards made by the arbitrator are confidential.

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 20. FURTHER INFORMATION

The various organisations listed below and in section 21 provide a considerable variety of detailed information material, mostly free, on various aspects of employment law.

Care should be taken because, whilst the effect of employment law in Northern Ireland is substantially the same as in England and Wales, it is often found in different legislative provisions and does sometimes differ.  

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21. USEFUL CONTACTS

The Law Centre operates an advice line, open to member agencies from 9.30 am to 1.00 pm, Monday to Friday.

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© Law Centre (NI) July 2008

All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI).

Note: These notes should never be relied on in isolation in advising or deciding whether or not to pursue a CLAIM. INDEPENDENT legal advice should always be sought in such circumstances.