The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed
by the Conservative government to codify the existing law on individual rights in
UK labour law. History
Previous statutes, dating from the Contracts of Employment Act 1963,
included the Redundancy Payments Act 1965, the Employment Protection Act 1975
and the Wages Act 1986. It deals with rights that most employees can get when
they work, including unfair dismissal, reasonable notice before dismissal, time
off rights for parenting, redundancy and more. It was amended substantially by
the Labour government since 1997, to include the right to request flexible
working time. Part I, Employment particulars
An employee has an employment contract. ERA 1996 section 1(2) states, that the
main terms of the contract must be in writing and provided to the employee
within eight weeks of the start of their employment. This document is called a
"written statement of particulars". It confirms the main express terms of the
employment contract. Whilst not definitive of the entire contract, the
written statement is intended to be a guide for employees' of their rights, so
that they know what kind of terms and conditions of employment to expect. But
it is also meant to provide an evidential basis on which to bring a
claim for the breach of some right in a court or employment tribunal.
Parts IVA and V, Disclosures and detriment
Protection against "detriment" suffered because of disclosing information for
public benefit Parts IV, VI and VII, Sundays, betting,
time off and suspension Paid time off work for public duties,
ante natal care, and training. Dismissal related to health and safety
or asserting statutory rights and dismissal related to a request for
flexible working are to be considered automatically unfair under the ERA.
Part IX, Dismissal notice and reasons Employees have a right to reasonable
notice before having their contracts terminated under s.86. At present this
means everyone should get a minimum of 1 week's notice before being dismissed if
they have worked for the employer for more than a month. After 2 years, the
minimum is 2 weeks' notice. After 3 years, 3 weeks' notice, and so on, up to
a maximum of twelve weeks' notice. Naturally, many employees will have
higher notice periods in their contracts, or under the protection of
collective agreements established by the workplace union. It is important to note
that these minimum periods are reciprocal - there is a "mutuality of
obligation" - and so employees are also required to give such reasonable notice.
However nothing prevents employers' giving pay in lieu of notice if it is
expressly provided for in the employee`s contract of employment, staff handbook
or other relevant documents such as a staff handbook or collective agreement.
Both parties can also agree within that period to waive their rights.
Both this right and the right to written particulars of one's contract of
employment were introduced through the Contracts of Employment Act 1963.
Part X, Unfair dismissal Employees have a right under s94 of the
Act not to be unfairly dismissed. This is probably the most important right,
because it would usually be under an action after dismissal that a former
employee would complain that his other rights were breached. Firstly, it is
unusual to commence litigation against an employer while still working for
them. Second some rights, such as the right to reasonable notice before
dismissal can logically only be breached when someone is dismissed.
Dismissal must be fair, though this means it can also be harsh. The reasons
laid out that an employer can dismiss are in s.98(2). Fair reasons to dismiss
an employee are if it, So there is no restriction on
management's right to dismiss if the employee is just bad at his job, not a
nice person to work with is retiring is redundant or the employer is forced to
sack someone because of a law. An important detail, however is that an
employer may also dismiss, under s.98(1) for "some other substantial reason". For
this, see the main page. Most dismissals take place for
legitimate business reasons, because the employer will no longer require staff,
or maybe because times are bad and the employer can no longer afford to pay.
There may be the possibility of claiming redundancy. But employers will usually
be happy to write a reference. If they do there is an obligation to be accurate
and fair, and that means not providing a so-called "kiss of death" reference on
to the next potential employer: if only bad things can be said, nothing should
be said at all. Complaints to a tribunal
The way to enforce a claim for unfair dismissal is at an employment tribunal.
An employee who is dismissed may also have breach of contract claim(s), based
on common law. Common law claim(s) may be brought in a county court. Employment
tribunals are spread around the country, in most towns. The right to bring a case
falls under Part X, Chapter 2, s.111. Settlement Agreements
The Settlement Agreement is a new concept that replaces the former
"Compromise Agreement". Section 111A(2) of the ERA 1996 provides for
"Pre-termination Negotiations" that are: "any offers made or discussions held,
before the termination of the employment in question, vita a view to it being
terminated on terms agreed between the employer and the employee".
The new provisions, which came into force on 29 July 2013, allows an
employer to seek agreement with an employee for the latter's dismissal,
thereby avoiding any risk of tribunal litigation for wrongful or unfair
dismissal. The employee is invited to attend a meeting and may bring a
companion. The employer, having discussed the issues, can make a written
offer of termination, and the employee should be given 10 days to consider. The
negotiations are confidential and "without prejudice". A Settlement
Agreement is enforceable, but the employer is advised to have a "clawback"
clause to allow recovery of any termination sums paid should evidence of
misdeeds by the employee later arise. The discussions must observe ACAS Code
of Practice 4 guidelines on settlement agreements; failure to comply may amount
to "improper behaviour" by the employer, allowing the employee to renege on the
agreement. Part XI, Redundancy payments
Section 135 of the Act gives employees a right to redundancy payments. This means
when their jobs have become obsolete and employer should compensate them,
provided they have become an established employee. The qualifying period for
redundancy is having worked for two years with the same employer. You are
not entitled to redundancy if you have simply reached retiring age. And nothing
prevents the employer from making a dismissal for misconduct or capability,
as outlined under the fairness provisions for dismissal.
The amount of redundancy is based on a length of service calculation and age.
For each year you have worked while you were under 21 years old, you get half a
week's pay. For each year between ages 21 and 40, one week's pay. For each year
over 40, one and a half week's pay. However, there is an upper limit set on
what can be considered a week's pay, which is approximately the same as a
week on the minimum wage. Part XII, Employer insolvency
This right, under section 182, to compensation for lost earnings is for
when the employer goes broke. It applies in the unlucky cases where an employer
has gone bankrupt or insolvent and there is no money left to pay the staff, who
have outstanding pay cheques. The Secretary of State, on behalf of the
government, guarantees pay up to a certain maximum, to replace what was
lost. Part XIII, Miscellaneous
Part XIV, Interpretation The most important point about the Act
is that there is some confusion about whom it covers. Most British people will
be covered, but often vulnerable workers are not. Under section 230 of the Act
the word "employee" is defined to mean somebody with a "contract of
employment". This in turn means someone who has a "contract of service". In
legal cases since the early 1980s, some judges have placed a restrictive
interpretation on what that means. The opposite of a "contract of service" is a
"contract for services", and it is meant to draw the line between someone who is
working for another, on their account, under their control and someone who is
working on their own account, controlling their own work. In other
words, it is meant to be the difference between the truly "employed" and the
"self employed". In many cases, low paid, vulnerable
workers, especially agency workers have been held to fall outside the scope of
those rights in the Act which are only for "employees". This is because some
judges have taken the view that there was not sufficient "control" or
"mutuality of obligation" to establish a contract of employment. What those
judges have meant by "mutuality of obligation" is that the terms of the
contract, especially an obligation to work or not work at any given time and
the promise of work in future, were not reciprocal enough. So in O'Kelly v
Trusthouse Forte plc [1983] ICR 728, Sir John Donaldson MR held that some waiters
who were hired through an agency to do dinner functions were not "employees"
because they did not, technically, have to turn up to work for a shift, and they
could be sacked at any time. Sir John Donaldson MR said therefore, that the
contract lacked "mutuality" and could not be described as one between an
"employee" and "employer". The legal effect was to put them in the same boat
as the "self employed" and that they were not covered by the Act. The
practical effect was they had no right to fair dismissal and could be sacked
for organising a trade union. But other judges have said other things.
In Nethermere Ltd v Gardiner [1984] ICR 612, part-time workers were sewing
pockets onto Nethermere company's trousers. The sewing machines were
provided and they were paid by the piece. There was disagreement over
holiday pay and they were removed . Stephenson LJ decided "There must, in my
judgment, be an irreducible minimum of obligation on each side to create a
contract of service." And what he meant by this was an exchange of wages for
work and sufficient control to make establish the employee-employer
relationship. He did not use the "mutuality" concept, or if he did, he
used it to mean the exchange of wages for work, and no more.
There is considerable debate about where the scope of employment rights really
lie. Most people will have a contract of employment, and fall squarely within the
"employee" category. But it will not apply to professional self-employed
people at the top end of the labour market, and it is uncertain whether it
always applies to those working through agencies and those whose jobs make them
vulnerable. See also
UK labour law UK agency worker law
Temporary and Agency Workers Bill Notes
External links The full text of the act
A summary of the rights conferred by the act
A summary of the rights conferred by all relevant UK employment legislation