Establishing your business in the UK may mean you need to think about recruiting a UK workforce. Before you start recruiting, you should know what rights your new staff will have; UK employment laws could differ markedly from what you’re used to at home.
In the UK, people that make up an employer’s workforce are categorised as either an employee, a worker or self-employed (often called a contractor or consultant). For this blog, we’ve gathered some information from Lexology and we’ll concentrate on employees and focus on their legal rights, which UK employers will need to be aware of and adhere to.
Who is an employee?
UK employment law defines an employee as a person who has entered into, or works under, a contract of employment. A contract of employment means a contract of service and can be express or implied and if express, can be oral or in writing. We would always recommend though that a contract is agreed between the parties in writing – to create certainty of terms (and in fact new legislation introduced over recent years has made written terms a day one requirement). The handbook we have prepared contains a list of factors that indicate that an individual is working as an employee.
Employees are entitled to a wide range of statutory rights and protections, whether they are employed full-time, part-time, permanently or for a fixed term. By comparison, a worker is entitled to a more limited range of statutory employment rights; and a self-employed person has few statutory rights.
If an employer employs someone using a series of fixed-term contracts for at least four consecutive years, they will usually be deemed a permanent employee.
Are all employees equal?
All UK employees have the same employment rights and protections. However, certain rights will only “kick-in” after a certain time period. For example, an employee can currently only make a formal request to work flexibly, after 26 weeks continuous service.
Part-time workers (which includes part-time employees) have the right to the same terms and conditions as comparable full-time workers and have the right not to suffer a detriment (or dismissal) because of their part-time status.
Likewise, fixed-term employees have the right to the same terms and conditions as comparable permanent employees and have the right not to suffer a detriment (or dismissal) because of their fixed-term status
Minimum wage
All UK employees over school leaving age (currently 16) must be paid the National Minimum Wage (NMW) and those over 23 are entitled to the National Living Wage (NLW). Rates are updated annually and are available at: www.gov.uk/national-minimum-wage-rates It is a criminal offence for an employer to refuse to pay the NMW.
Restrictions on working hours
Employees are not generally allowed to work more than 48 hours per week, normally averaged over a 17-week period. However, in the UK, most employees can, and do, opt out of this limit. They can opt back in at any time by giving written notice to their employer.
Employees are generally also entitled to rest breaks. For example, an employee that works more than six hours a day is entitled to a 20-minute rest break away from their workstation. Most employees are also entitled to a weekly rest break of 24 hours of continuous rest in every seven-day period (or 48 hours’ continuous rest in every fortnight).
There are some exceptions to restrictions on working hours and we’ll be happy to explain if they might apply to your UK employees.
Flexible working
Flexible working is increasingly common, with many businesses moving away from fixed 9-5 hours to improve the work-life balance and productivity of staff. All employees who have worked continuously for the same employer for at least 26 weeks have the right to formally request flexible working arrangements. In practice, many employers will have a policy that allows requests to be made from the start of employment.
Minimum holiday entitlement
All employees have the right to 5.6 weeks’ paid holiday each year (the statutory minimum). For a full time employee, this equates to 28 days (including public holidays). Employees that start or end work part way through a holiday year are entitled to paid holiday on a pro rata basis.
Public holidays
There are currently eight permanent public and bank holidays in England and Wales. Although these can be (and often are) included in an employee’s minimum holiday entitlement, employers do not have to let their staff take a holiday on these specific days, provided they are not deprived of their statutory minimum holiday entitlement.
Paid sick leave
Employees who are unable to work due to illness or injury for four or more consecutive days are entitled to receive statutory sick pay (SSP), provided they meet the qualifying conditions. The maximum entitlement is 28 weeks’ SSP during any period of incapacity for work (or any series of linked periods). Many UK employers also offer contractual sick pay at a higher rate than SSP.
Maternity, paternity, and other parental rights
Eligible employees:
- have the right to up to 52 weeks of statutory maternity leave and up to 39 weeks’ statutory maternity pay (or maternity allowance depending upon length of service).
- have the right to up to two weeks’ paternity leave, which may be paid (again, depending upon length of service).
- have the right to shared parental leave and parental leave pay between them, by reducing their maternity/paternity leave entitlements. The rules around shared parental leave are complex and we recommend seeking advice is a staff member requests this type of leave.
- have a right to parental bereavement leave of one or two weeks, at any time within 56 weeks of the death of a child.
- can also take up to 18 weeks’ unpaid parental leave up to each child’s 18th birthday.
Protection from discrimination
It is unlawful in the UK to discriminate against job applicants and employees on the basis of any of the following protected characteristics: sex, marital or civil partnership status; race (including colour, nationality and ethnic or national origin); gender reassignment; religion or belief; sexual orientation; pregnancy and maternity; age and disability.
If an employee’s discrimination claim is successful, the employment tribunal may order the relevant employer to pay compensation to the employee. Whilst potential compensation is technically uncapped, it’s usually based on any actual or potential future loss they would suffer.
Protection from harassment
Harassment is a form of unlawful discrimination if it relates to any of the above protected characteristics (except for marital or civil partnership status, or pregnancy and maternity).
An employer is liable for harassment if they engage in unwanted conduct related to a relevant protected characteristic, that either violates a worker’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Health and safety
As a UK employer it’s your duty to do whatever is reasonably practical to protect the health, safety and welfare of your employees. Amongst other things, this means carrying out risk assessments and protecting employees or others in the workplace from anything that may cause them harm.
Pensions
Under the Pensions Act 2008, every employer in the UK must automatically enrol certain staff (according to the regulator’s guidelines) in a workplace pension scheme and contribute towards it.
Data protection
As an employer in the UK, employers will obtain, process and store personal data (including certain forms of sensitive personal data) about their employees. For data protection purposes, this makes employers a data controller. Each employee will be a data subject, with corresponding rights and obligations.
All employers must process the personal data of their staff, securely and fairly, in a proportionate manner and for legitimate reasons, in compliance with the applicable data protection legislation:
- the Data Protection Act 2018,
- the General Data Protection Regulation (GDPR)
- the UK’s own version of the GDPR, called the UK GDPR
- related guidance such as that published by the Information Commissioner’s Office (ICO).
An employee can make a data subject access request (DSAR) to obtain details of the personal data that employers hold about them (and copies of the same). This includes:
- information about the type of the data being held
- the purposes for which it is processed
- the recipients to whom the data has been disclosed it.
Unless an exemption applies, employers must respond to a DSAR within one month of receipt or face possible enforcement action by the ICO, which can include significant fines.
Cross border transfers of data can become complex, and we would always suggest specialist advice is sought.
Conclusion
Whilst we refer to the UK in this article, the law in the UK can often vary between the four nations, especially for property, employment, or companies. When we say UK, we are generally setting out the position for England and Wales. If you are specifically concerned with employment matters make sure to contact Aman Solicitors.
