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GMB Birmingham & West Midlands Region

Contracts and Pay

1.    Am I Entitled To A Written Contract of Employment?        

Except where your employment lasts a month or less, your employer should give you “Written Particulars of Employment” within two months of starting.  These are your employer’s version of your contract.  If you disagree with anything, object to your employer e.g. insist they take out any paragraph giving them the right to change the contract.  

The Particulars should contain: 

  • their name and your own name
  • the date your employment began. Also the date your “continuous employment” began. This might be earlier e.g. if you moved directly from a parent company to one of its subsidiaries, or if you were in a business or undertaking transferred from one employer to another
  • pay scale or rate, or method of calculating pay
  • Pay interval, e.g. weekly, monthly
  • any terms about hours of work, including normal working hours
  • any terms about holidays (including public holidays) and holiday pay
  • any terms about sickness, including sick pay
  • any terms about pensions and pension schemes
  • notice periods on both sides
  • your job title or a brief description of your work
  • the period a non-permanent job is expected to continue; if for a fixed term, the date it will end
    your place of work; if you might work at more than one site, a statement to that effect and the address of the employer
  • any collective agreements which directly affect your terms and conditions, including (where your employer was not a party to those agreements) the names of the parties, e.g. an employers’ federation and a trade union.
  • information, if any, on working outside the UK for more than a month
  • a note of any disciplinary rules; of the disciplinary and dismissal procedures; of the grievance procedures and who you should raise the grievance with; and of any appeal procedures.Alternatively, they must refer you to an easily accessible document containing the procedures. 
The employer can provide the written information in a contract of employment or letter of employment given to you either before you start work or within two months of you doing so. 

The Particulars might be given to you in parts, or refer you to other documents. Any change should be notified to you within a month after the change.

If your employer does not give you the Particulars, or if they do not contain the required information, you can complain to an Employment Tribunal. 

However you can only get compensation if you win a different tribunal complaint e.g. unfair dismissal, equal pay. In that event, the tribunal can award between two and four weeks’ pay for the employer’s failure to provide the written details.
 
2.      Can My Employer Change My Contract? 

A contract is a two-sided agreement. It cannot be changed without agreement between both sides. But some employers look for ways to force changes on workers. 

They might slip a term into a written contract, the Written Particulars or a Company Handbook “reserving” the right to change the contract. If you let this go unchallenged, you may find yourself in difficulties. Your GMB representative can contact your employer to say this is not a term of your contract. 

They might dismiss you and offer you a new contract of employment, containing the terms they want to impose. If you accept the new contract (even “under protest”), you are bound by its terms. However, because your old contract was terminated by the employer, you can lodge an unfair dismissal complaint (even though you are still at work). See below for advice on unfair dismissal. 

They might “unilaterally impose” different terms (without dismissing you). If the change does not affect the way the contract currently operates (e.g. the employer revokes your enhanced redundancy pay), you should write to your employer refusing to accept the reduction in terms.  

However the new term might have an immediate impact, e.g. a new shift system. In that case, you should not continue to work “under protest”, because that is incompatible with rejecting the new term. Provided the change is substantial, you can treat it as a dismissal, combined with an offer of a new contract, as above. So you should write to your employer saying you regard the change as fundamentally breaching your contract and amounting to a dismissal; that you regard yourself as dismissed; but that you accept the changes as an offer of a new contract, which you will accept under protest and in mitigation of your loss. You can then continue to work, while lodging an unfair dismissal complaint. But this is a very tricky area. Ask your GMB representative for help. 

Unfair dismissal complaints are always difficult to win, particularly when they concern the unilateral imposition of worse terms and conditions. Your GMB representative will consider the following questions: Did the employer have a genuine business reason for the change (even if you disagree with it)? Did that reason merit such serious changes to your contract? Did the employer genuinely try to reach agreement on the changes? Were the changes accepted by a majority of your colleagues?  

Special rules apply to changes imposed by a new employer after a Transfer of an Undertaking, e.g. sale of a business, or contracting-out. A special law known as “TUPE”, says that such changes are not binding, even if agreed by the workforce, because European law guarantees the same terms and conditions under the new employer. Your GMB representative has access to specialist advice on TUPE.
 
3.     How Long Can An Employer Keep Me on A Temporary Contract

On 1 October 2002 the Fixed- Term Employees (Prevention of Less Favourable Treatment) Regulations came into force. They implement a 1999 European Union Directive aimed at controlling the misuse of fixed-term contracts.

Fixed-term employees now have the right not to be treated less favourably or suffer any other detriment in comparison with a permanent employee in pay and other conditions, unless the employer can objectively justify it.

The Regulations only cover those who legally qualify as employees, not the wider legal definition of worker. So, some temporary workers may be excluded. Agency workers are also excluded.

The Regulations say that where an employee has been employed on a contract, or aseries of contracts without gaps, for four years or more ,any further extension will automatically make the contract permanent, unless the employer can objectively justify the extension. The start date for this provision is 10 July 2002, so any time on a contract or contracts before this does not count.

Employers are required to inform fixed-term employees of permanent vacancies.

Redundancy Waiver Clauses, which allow an employee to sign away rights to a redundancy payment at the end of the fixed-term contract are abolished for all contracts signed on or after 1 October 2002. However, Redundancy Waiver Clauses signed before this date will still be valid.
 
4.     Am I am entitled to a pay slip?

Before or at the time of each payment of wages or salary, every employee is entitled to a written and itemised pay statement

This pay slip must state:
  • The gross pay;
  • the net pay;
  • the amount of any variable or fixed deduction;
  • the reason for any variable or fixed deduction.
Where parts of net pay are paid in different ways, the method of payment of each part and its amount.

The pay slip can give the total amount of fixed deductions (rather than the amount of each one), provided the employer has already given you a “standing statement of fixed deductions”. This standing statement is valid for a maximum of one year, and must give:
 
  • The amount of each fixed deduction;
  • the reason for it;
  • the interval at which the deduction will be made.

If your employer does not give you a pay slip, or if the pay slip does not contain the required information, you can complain to an Employment Tribunal not later than three months after your employment ends.

 

5.    Is My Employer Allowed To Make Deductions From My Pay?

No deduction may be made from your wages unless either:

(1) It is allowed by your contract or :(2) You have agreed in writing to the deduction or:(3) It is allowed by statute, for example deductions for PAYE tax and national insurance.

If a deduction is made from your wages:

(1) The term of your contract allowing the deduction must have been shown to you or ;(2) If your contract is not in writing, you must have been notified in writing about the deduction before it is made.

Sums wrongfully deducted from your wages must be repaid by your employer.

Your ‘wages’ includes bonuses, commission, holiday pay, statutory sick pay or statutory maternity, paternity or adoption pay.

But “wages” do not include payments under loan agreements, expenses, benefits in kind, pay in lieu of notice or payments related to redundancy.

However, an employer can make deductions without your consent:

(1) to reimburse themselves for having overpaid your wages;(2) to deduct wages where you take part in industrial action.

Overpayments

Your employer can generally recover overpayments made to you by mistake of fact (such as a clerical error) provided the overpayment was one you should have noticed; and provided you have not, in good faith, incurred expenditure you otherwise would not have incurred.

However, your employer cannot recover an overpayment made to you by mistake of law such as a mistake as to the meaning of your contract, the correct tax deduction or NI payment.

This area is very tricky and you should always consult your GMB representative, who has access to specialist advice.

6.    Is Everyone Entitled To Paid Holidays?

The Working Time Regulations 1998 set down the minimum annual leave provisions for workers although some employers may provide more generous contractual holidays. All workers have the right to a minimum of 5.6 weeks paid holiday a year (equivalent to 28 days for someone who works a five day week. This entitlement was increased from 4 to 4.8 weeks in 2007 and from 4.8 to 5.6 in 2009 as a result of Union campaigning.

Bank and public holidays can count towards the 5.6 weeks. (But workers and employers can agree longer holidays.)

A worker cannot be paid in lieu of taking their holidays except where the job has ended and they have outstasnding untaken holidays.

Entitlement to statutory annual leave begins on the first day of employment, but for the first year of employment, an employer may restrict the rate at which workers can take the leave. Holiday rights are accrued on a monthly basis, and in the first year a worker is entitled to a twelvth of the annual holiday for every month worked. The amount of time that can be taken at any one time within the first year can be rounded up by half a day. So, a worker working 5 days a week who has worked for 2 months will be entitled to take 3 and 1/3 days but can take 3 and a 1/2 days holiday. 

Before taking holidays, you must give your employer notice of at least twice the length of the holiday you want to take e.g. two weeks’ notice to take one week’s holiday; 6 days’ notice to take 3 days’ holiday. If the employer does not want you to take that holiday, they can give you counter-notice equal to the holiday e.g. counter-notice one week before you plan to take one week’s holiday; counter-notice 3 days before you take 3 days’ holiday. If your employer has better procedures for deciding holidays, these can replace the system under the Regulations.

If the employer wants you to take holiday at a given time e.g. a seasonal shut-down, they must give you notice of at least twice the length of the holiday. But there is no right for the worker to give counter-notice to take that holiday at a different time.

If you begin work during the leave year, you get the equivalent proportion of the 5.6 weeks’ entitlement. The same applies if you leave during the year.

5.6 weeks leave must be taken in each leave year. However, if both employer and worker agree, any unused additional holiday entitlement above the 5.6 week minimum can be carried over.

Making payments for statutory holiday entitlement through a system of rolled-up holiday pay is no longer lawful. Employees must now receive their holiday pay at the time leave is taken, rather than as an allowance spread over the holiday year. 

It may be that your contract gives you better rights or your holiday rights might be specified in a collective agreement. Within two months of the start of your employment your employer should give you written details of your terms and conditions of work. The written statement should include any terms relating to your entitlement to holidays, including public holidays, and holiday pay.

These written details must allow you to calculate precisely your holiday entitlement, including any entitlement to accrued holiday pay on termination of employment.

An employee who takes holiday while in a statutory period of notice (one week for each complete year of service) should be paid during that period.

Pay during holidays is calculated as a normal week’s pay but a worker who is entitled to commission will not automatically have this included in the calculation. Overtime pay will only be included if the employer is contractually obliged to provide it. Performance related bonuses should be included.

7.    Am I Entitled To Bank Holidays?

Only bank workers themselves are entitled to bank holidays. For all other workers there is no automatic right to take bank or public holidays as paid or unpaid leave, or to take time off in lieu.

Any right to do so depends on the terms of your contract.

There may be express terms in your contract giving you a right to time off on some or all bank and public holidays.

There may also be terms implied by custom and practice.

In some industries it is common for the entire workplace to be shut down between Christmas and New Year. In others there may be a shut down for two weeks over that period and for two weeks in the summer, so that all workers take holidays at the same time. In this case your contract may specifically state that you can only take holidays during shutdowns.

If your employer does allow you to take paid time off on bank holidays, they can count these as part of the mimimum 5.6 weeks. Although increases to holiday entitlement do not mean that all workers can take the extra days on designated bank holidays,it means that workers who previously had to take bank holidays out of their 4 weeks holiday get extra days to compensate.
 
8.    What Are My Rights As A Part-Time Employee?

Part-time workers have the same statutory rights as full-time workers. For example, they are entitled to redundancy payments and protection against unfair dismissal; maternity and sickness rights; written particulars of terms of employment; time off; suspension and lay-off payments; protection against unlawful deductions from pay and against discrimination on grounds of sex or marital status, race, disability, sexual orientation and religion or belief. As with full-time employees, some of these rights are only acquired after a period of continuous service. Part-time workers are also entitled to be paid for all hours spent up to the equivalent hours paid for and to full time workers when attending approved union training courses. 

The law also tackles discrimination against part time workers in contractual terms. Unless the employer can objectively justify less favourable treatment, part-timers are entitled:
  • to the same hourly pay;
  • to the same hourly rate of overtime, once they have worked the normal full time hours;
  • to entitlement to leave on a pro rata basis - annual, sickness, maternity/paternity and parental;
  • to the same access to occupational pension schemes;
  • to participate in profit sharing or share option schemes;
  • to be entitled to benefits such as subsidised mortgages and staff discounts;
  • not to be excluded from training or promotional opportunities
  • to be treated no less favourably in the case of career breaks
  • to be treated no less favourably in redundancy situations as their full time equivalents.
An employee or a worker must therefore find a comparator employed or working on broadly similar work and who works under the same type of contract at the same establishment. If you change from a full time to a part time contract, the comparison can be made with your own previous full time conditions. If there is no appropriate full time comparator at the establishment, you can widen to scope to include another establishment of the same employer.

Employers should review as a matter of best practice the employment and career structure of part time workers; to consider extending part time working and job sharing, and to consult with worker representatives on arrangements for part time working.

If a part time employee considers s/he has been less favourably treated on grounds of working part time, they will be entitled to a statement of reasons for such treatment. The employer must provide this within 21 days. Failure to do so can be taken into account in any Tribunal proceedings. The part-timer is protected against victimisation for any action taken in connection with these rights.

Complaints on failure to comply with the regulations should be made to an Employment Tribunal generally within three months of the non-compliance. The Tribunal can make a declaration of rights; award compensation and/or recommend action to eliminate or reduce any adverse impact
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