As an employee without a contract of employment, you are officially classed as a ‘worker’ as opposed to an ‘employee’ and, as such, your terms of employment will be based on the rights afforded a worker as opposed to those for an employee.
Contrary to what many employers believe, the rights of a worker are not that dissimilar to those employees who do have a contract of employment.
Do you have a contract of employment?
If you have no official written contract, you may be quick to answer in the negative, but this could be a mistake as not all contracts of employment have to be on paper and signed by both sides.
A contract of employment can be verbal or written. The terms of your employment will usually decide if you have a verbal contract of employment, or not.
As an example, if your employer tells you that they expect you to work from 8 a.m. through to 5.30 p.m. with an hours’ break for lunch, Monday through Friday and that you will be paid a fixed wage per week, this has the makings of a verbal contract as this is classed as full-time employment.
If the employer explains to you that you will be entitled to 26 days paid holiday a year and that you will be entitled to Statutory Sick Pay, then you have a verbal contract.
You should note that irrespective of the existence of any contract of employment, an employer is obliged to provide you with written details of your duties and the business’ expectations of you.
What is important to note is that this document is not a contract of employment, but it can be useful in helping to prove if a verbal contract of employment has been created.
So, let us assume you have established that you have a contract of employment. The next question to be answered is, what are your rights?
Employees rights under a contract of employment
Your rights will be dictated partly by the law of the land and partly by the terms of your employment. Terms of employment come in three differing forms:
- Express terms
- Implied terms
- Statutory rights
None of these needs necessarily be in the form of a written contract.
Express terms are specific details of your terms of employment that have been discussed and agreed with your employer. These details will include some, but not necessarily all, of the following:
- Hours of work excluding overtime
- Workplace benefits, such as medical health cover, pension contributions, etc.
- Entitlement to SSP
- Entitlement to holiday pay
- The rate at which you will be paid, including overtime and holiday pay
- The number of days’/weeks’ notice your employer must give you, or you must give your employer, should there be a need to terminate the contract
It should be noted that express terms need not be part of a written contract and these terms can often be part of an employee handbook or written details of the nature of your work and what is expected of you.
It is essential that if you enter into a verbal contract, you take written notes of what has been agreed and also make a record of the date and who was present during the discussion. This may prove useful if, further down the line, your employer chooses to dispute the terms of (any) contract of employment between the two of you.
Ultimately, any employer has a duty of care regarding their workforce, and they are responsible for your overall wellbeing. In terms of any contract, whether verbal or written, implied terms are rarely written or spoken but are established by case law and, where any dispute reaches the law courts, will be ‘read in” to the contract by a tribunal.
Implied terms invariably place an obligation on the employer and the employee. Where the employer is concerned, implied terms require an employer:
- Never to ask you to do anything illegal
- Never to ask you to do anything that could be hazardous to your health
- To provide a safe working environment
- To deal with any complaint or grievance in a prompt manner
In return, an employee has an obligation to:
- Maintain confidentiality concerning any information learned/discovered in the workplace or while acting on behalf of the employer
- Not assist any competitor who may be involved in the same or similar work
- To carry out any instructions given to them by the employer
- To work in a cooperative manner
How do the terms of employment differ if you have no contract of employment?
If you have established that there is no verbal contract between yourself and your employer, or written, express terms are still relevant, and you can agree to as many, or as few of them as you like.
However, the one thing that an employer cannot do is create a situation where, even without a contract of employment, you are placed in apposition where you are worse off than the law dictates – in other words, irrespective or not that a contract exists, your statutory rights protect you.
These statutory rights include, but are not limited to:
- Appropriate rest breaks
- Protection about discrimination or being harassed at work
- Equal financial remuneration to anyone of the opposite sex who is carrying out the same task(s)
- To be paid the legal minimum wage
- Being given a payslip each week or month that itemises the gross pay and all deductions – all deductions must be legal deductions
Your rights when you do not have a contract of employment
Once again, there are statutory rights which protect all employees. Where dismissal is concerned, these rights include:
- That you are given one week’s notice of termination of employment if you have worked for that employer for more than one month but under two years
- That you are given one additional week’s notice of termination of employment for every week, you have worked for an employer after two years, up to a maximum of twelve weeks
Your statutory rights to maternity leave if you do not have a contract of employment include, but are not limited to:
- An employer cannot dismiss you because you are pregnant
- You are entitled to take time off during pregnancy to attend antenatal appointments or doctor’s appointments
- You will be entitled to 52 weeks of maternity leave
- Your employer must keep your job available to you for up to 26 weeks and, after that, must guarantee to provide you with a similar job on the same rate of pay when you do return to work
- That you will receive Statutory Maternity Pay. Please note that you will have the right to up to 39 weeks of maternity pay providing you have or will have worked for that employer for a minimum of 26 weeks by the time you reach 15 weeks before the week the baby is due.
In return, as an employee, you have a legal obligation to notify your employer, preferably in writing, that you are pregnant prior to 15 weeks before the due birth date. Failure to do so will severely affect your statutory rights.
Your rights regarding discrimination if you do not have a contract of employment
Once again, you have statutory rights irrespective of the terms and nature of your employment. This means that your employer cannot discriminate against you, directly or indirectly, regardless of your race, sex, age, sexual orientation, religion, any disability, marital status, etc.
If you have made a complaint to your employer based on discriminatory practices, whether they are real or perceived, you are entitled to remain in your position without being subject to victimisation or retaliatory practices.
Employment law is complicated, and as is so often the case, when there is a problem for which legal advice would be recommended, there is no ‘one-size-fits-all’ answer, as the majority of cases have to be assessed on an individual basis.
When there is no contract of employment, many employers believe that employees have few if any rights, which is not the case. As a consequence, if you believe you are being unfairly treated at work or have been unfairly dismissed, and you do not have a contract of employment, then we would strongly recommend you contact an employment lawyer as you will definitely need someone with extensive knowledge on your side.
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