This information applies to England, Wales, Scotland and Northern Ireland
It is very important to find out what your employment status is. Many employment rights, such as the right not to be unfairly dismissed, and the right to redundancy pay, rely on you being an employee.
It is common for an employer to call someone self-employed, or a ‘casual worker’ or a ‘trainee’, when that person is really an employee. Employers do this in order to avoid having to pay tax and national insurance for their employees and to try to avoid them having employment rights. It is irrelevant what your employer calls you, whether you are known, for example, as self employed, an agency worker, or a casual worker. In addition, just because you pay tax and national insurance as a ‘self-employed’ person, it does not automatically follow that you are actually self-employed rather than an employee. What matters is what happens in practice about how you work, who decides what work you do and what you are expected to do by your employer.
The following factors will all help you decide whether you are an employee or self-employed when you want to find out what your employment rights are:-
If, after reading through the factors under the heading How to tell if you are an employee or not, you think you are an employee, you will have a contract of employment. This does not have to be written down. A contract of employment is agreed between the employer and the employee and can be a verbal contract. See below.
If you are still not sure whether or not you are an employee, you should speak to an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
If you want to know whether you're an employee or self-employed in order to work out how much tax or national insurance to pay, the rules are slightly different to the ones described here. For more information about these rules, go to the HM Revenue and Customs website at: www.hmrc.gov.uk.
If you are getting work through an agency, you may be:
There are special rules about how agency workers pay tax and national insurance contributions and about how to decide if they are employees or self-employed.
If you have any queries about being an agency employee, you should consult an experienced adviser, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If your employer asks you to sign a new contract which says that you are self-employed rather than an employee, signing the contract does not mean that you then become self-employed. This is because, regardless of what your employer says, whether or not you are an employee or self-employed depends on what happens in practice and the relationship between you and your employer – see under the heading How to tell if someone is an employee or not.
If you are being asked by your employer to sign a new contract, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
There is always a contract between an employee and employer. You may not have anything in writing, but a contract will still exist. This is because your agreement to work for your employer and your employer’s agreement to pay you for your work forms a contract. Your employer does have to give you a written statement within two months of you starting work. The statement must contain certain terms and conditions.
A contract gives both you and your employer certain rights and obligations. The most common example is that you have a right to be paid for the work you do. Your employer has a right to give reasonable instructions to you and for you to work at your job. These rights and obligations are called contractual terms.
The rights that you have under your contract of employment are in addition to the rights you have under law, such as, for example, the right to a national minimum wage and the right to paid holidays.
For more details about what rights an employee has by law, see Basic rights at work.
Generally, you and your employer can agree to whatever terms you wish to be in the contract, but you cannot agree to a contractual term which gives you less rights than you have under law (see under heading How the rights in an employee’s contract relate to rights in law).
A contract of employment will usually be made up of two types of contractual terms. These are:
Express terms in an employment contract are those that are explicitly agreed between you and your employer and can include:
The express contractual terms may not be in one written document, but may be in a number of different documents. They may not be written at all. The express terms may be found in:
You may not have possession of all the relevant papers. You may be able to get copies from your Personnel Department, foreman, or trade union representative.
You should always keep any papers given to you by your employer.
Because a contract will still exist even if there is nothing written down, anything which was said to you by your employer about your rights, and anything which you agreed verbally, should be recorded.
If you are an employee who does not have a written contract, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
Implied terms in an employment contract are those which are not specifically agreed between the employer and employee.
Implied terms are:
The following duties and obligations will usually be implied into any contract of employment:-
When dealing with a particular employment problem, there may be no express contractual term covering the matter. In such a case, it is helpful to look at what has happened to other employees in the workplace. This is because if other employees have been given this right, you can argue that you also have the right under ‘custom and practice’.
Trying to show that you have a right through ‘custom and practice’ can be complicated and you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
A contract may be broken if either you or your employer does not follow a term in the contract. This is known as a breach of contract. For example, if your employer doesn't pay you in lieu of notice which you are entitled to under your contract, this would be a breach of contract.
If your employer breaks your contract, you should try and sort the matter out with them informally first.
If this doesn't work, you could try raising a grievance against your employer. There are special procedures you may need to follow if you want to take out a grievance against your employer.
For more information about taking out a grievance against your employer, in England, Wales and Scotland see Resolving disputes at work and in Northern Ireland, see Dealing with grievances, dismissal and disciplinary action at work.
If you think your employer has broken your contract of employment, you should get advice about what action to take from an experienced employment adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
For more information in England, Wales and Scotland about your rights if your employer breaches the contract by not paying you what you're entitled to, see Employer withholds your pay in Employment fact sheets.
All employees, regardless of the number of hours they work per week, are entitled to receive a written statement from their employer within two months of starting work. The statement should describe the main terms of the contract of employment. You are entitled to the statement even if your job finishes before the initial two months, as long as the job was supposed to last for more than one month and you have worked for at least a month.
An employee who wants a written statement may request one verbally or in writing. It is usually best to request the statement in writing and keep a copy of the letter, so that you can prove you asked for the statement.
The written statement must include by law:
The above information does not have to be included in the written statement of terms and conditions. It can be given in, for example, a staff handbook which all the employees can have access to.
An employer may try to dismiss you for asking for the written terms and conditions of your job, even though you are entitled to this information by law.
If you think that your employer may dismiss you if you ask for the written statement of terms and conditions, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
Most employees have rights given by law. These are called statutory rights. They are in addition to any rights you have under your employment contract. Statutory rights which you may have include:
For a full list of statutory rights, see Basic rights at work.
Generally, you and your employer can agree any terms in the employment contract. However, you cannot agree to a contractual term which gives you fewer rights than your statutory rights. If you have agreed to a contractual term that gives you fewer rights than your statutory rights, for example, you have agreed that you will not take maternity leave, your employer will not be able to enforce the contractual term. You will still have a legal right to maternity leave.
There are particular rules regarding health and safety at work. For example, if you believe that a piece of equipment or a process may be dangerous, you may have a right to refuse to work with it and insist that your employer takes adequate safety measures.
If your employer is trying to enforce a contractual term which gives you less than your statutory rights, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
There are special rules about employees who are on fixed term employment contracts, which means the contract contains a date when it will end.
If you are an employee who is on a fixed term contract you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
It is common for employers to treat new employees as being in a ‘probationary’ period when they first start work. The employer may then argue that you can be dismissed while you are in this probationary period with no warning (notice). Employers also often argue that employees do not have usual employment rights to, for example, pay or holidays, during this ‘probationary’ period.
There is no such thing in law as a ‘probationary’ period. Once you have started work, the number of weeks you have worked begin on the day you start, not from some time when a ‘probationary’ period is over. Your full contractual rights also start from the first day of work, unless your contract says otherwise.
Your contract could, however, contain terms which only apply during your probationary period and which are less favourable than those which apply when your probationary period has ended. These terms must not take away your statutory rights.
Your employer can extend your probationary period, as long as your contract says they can do this. For example, your employer may want to extend your probationary period in order to have more time to assess your performance. However, they can only do this if your contract has a term which says your probationary period can be extended under these circumstances.
Employers may employ employees on a series of short term contracts, usually lasting for about a year, but always less than one or two years, to try to avoid the employee gaining employment rights. They may also employ the employee only during a particular season, for example, during the summer to pick fruit, but the employee may be expected to go back and work for that employer each year during that season.
If you have been employed on a series of short term contracts, or if you are a seasonal worker, you should consult an experienced adviser, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
If you have been employed on a series of short term contracts, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
Some employers call their workers casual workers in order to avoid having to give them what they are entitled to under employment law. Even if your employer says you are a casual worker, this doesn't mean that you are.
To find out what rights you have if your employer says you are a casual worker, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
Your employer may call you trainee in your employment contract, to try to prevent you from having your statutory rights.
However, this does not necessarily make you a trainee. It is important to look at the working relationship between you and your employer and what is in your employment contract to see whether you are actually a trainee or whether you have the same rights as other employees - see under the heading How to tell if you are an employee or not.
For example, you have been on a Work Based Learning scheme for young people but have now completed the scheme and have been taken on as an employee. You will have the same statutory rights as any other employee. These rights will apply to you from the first day that you became an employee, unless your employment contract says otherwise.
Your contract could, however, contain terms which only apply for a certain period of time and which are less favourable than those which apply once this period has come to an end. These terms cannot take away your statutory rights.
For more information about Work Based Learning, in England, Wales and Scotland see Government employment schemes.
To find out what rights you have if your employer calls you a trainee, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
You may have a problem at work because your employer wants to change the contract. In effect it is a proposal to change the contract of employment if, for example, your employer wants to:
In theory, your employer cannot change a term in your contract without you agreeing to the change. In practice, you may be faced with the choice of accepting the change or losing the job. However, you may be able to take some action against the employer if you disagree with the change.
Before you can decide what your rights may be regarding a proposed change to your contract, it is essential to discover what the existing contract says on the issue. You should look carefully at your copy of any written contract and/or the written statement of terms and conditions of employment (see under heading Employee’s right to written details about the employment contract). If you do not already have one, it may be advisable to ask the employer for a written statement of terms and conditions.
It is important to remember that taking action against an employer over a change in the contract may mean that you could lose your job. You should therefore consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
For more information in England, Wales and Scotland about what rights you have if your employer wants to change your contract of employment, see Changes to employment contracts in Employment fact sheets.
‘Zero contracts’ are contracts of employment which do not specify any number of hours that the employee will be required to work. They are common for shop workers. The contract says that instead of working a specific number of hours per week, you must be ready to work whenever you are asked.
‘Key time’ contracts are those where you are guaranteed some work, but are not guaranteed regular hours each week.
The problem with zero and key time contracts is that you are only paid for the time you work, so even if you have to wait on work premises or be at home waiting by the phone, you may not be paid for this waiting time. However, legally, if you're on a zero hours contract, you are entitled to be paid for any time you have to be on work premises waiting for work to come up, unless your contract of employment says otherwise. You should be paid your normal hourly rate or, at the very least, the National Minimum wage.
For more information about the National Minimum Wage, see Rights to pay.
It is a legal requirement that all employees must be given a written statement of their terms and conditions of employment (see under heading Employee’s right to written details about the employment contract). This must include terms and conditions about hours of work, including normal weekly hours, any overtime requirements, the rate of pay and how often it is paid. This statement is not your contract but it shows that you do have one and part of what it includes.
Even if your contract does not give details of the number of hours which you must work each week, but only says that ‘hours of work will vary each week’, it is still a legal contract.
If your contract states that you have no set hours of work and that you must be available to work, but what actually happens is that you work the same number of hours each day/week, then it may become an implied term of your contract (see under heading What is a contract of employment) that you do have a set number of hours to work each day/week. If you are willing to work this number of hours but are given no work to do you may be entitled to be paid your normal wage for these hours.
For more information in England, Wales and Scotland about how many hours a week you must work, see Working hours in Employment fact sheets.
If you are an employee in this position, you should consult a specialist employment adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
You will have an illegal contract of employment if:
A contract will also be illegal if it is for an immoral or illegal act.
A contract of employment will not be illegal if only one of the parties is not declaring the payments and/or making appropriate deductions.
If a contract tries to take away your statutory rights, it is not an illegal contract but it cannot be legally enforced (see under the heading How the rights in the employee’s contract relate to rights in law).
If you suspect you may have an illegal contract of employment, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
A fidelity bond or indemnity bond is a type of insurance policy that employers take out to insure themselves against their employees behaving dishonestly. The information which will be required about the employee will vary from one insurance company to another, and will depend on the type of policy the employer has taken out. Sometimes your employer will just have to supply your name to the insurance company, sometimes you will have to sign a statement saying that you have no previous criminal convictions. If a conviction is spent under the Rehabilitation of Offenders Act, you do not have to declare it.
If the information about you is held by the insurance company on a computer, then you have the right to see it under the Data Protection Act.
For more information about the Data Protection Act, Using the law to protect your information.
For more information about declaring criminal convictions at work, see Frequently asked questions about employment.
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