There has been a shake-up for some workers in the gig economy – ride-hailing firm Uber opted to pay their drivers’ holidays and a guaranteed minimum wage, as well as introduced an entitlement to breaks after the Supreme Court ruled drivers were workers in February last year.
Deliveroo riders, on the other hand, were classified as self-employed by the UK Court of Appeal, confirming that the Uber case did not set a precedent for the future of the gig economy. The classification of employee, worker and self-employed continues to be contested, and which one you are has far-reaching implications for your rights when it comes to pay.
Here’s everything you need to know to make sure you’re up-to-date on the treatment and pay you’re entitled to.
Am I an employee?
It depends on your status under employment law. There are three main types: an employee, a worker and self-employed.
You’re likely an employee if you have an employment contract, can be told what to do and are expected to work regularly. If you have a contract for services (which can be verbal or written) it is likely you’re not an employee but a worker with fewer legal rights. Someone who is self-employed, agency workers, directors, apprentices or volunteers also have different rights.
As Joanne Moseley, employment lawyer at law firm Irwin Mitchell, explains, “employees have the ‘gold standard’ of employment rights and workers have fewer rights”.
But she warns “it can be difficult for individuals to know if they are an employee or worker – and what’s written in their contract won’t necessarily determine this.
“Tribunals will look at the reality of the relationship between you and your employer and can decide that someone whose contract says they are a worker, is in fact an employee. The contract is only one piece of the jigsaw puzzle.”
When do my employee rights begin?
You have certain rights before you are even an employee at your place of work, such as being free from discrimination during the recruitment process, including the right not to be asked family-related questions such as whether you are pregnant.
Do I have a right to a contract?
You have the right to a written statement with the basic details, terms and conditions of your employment such as monthly pay, job title, paid holiday and minimum notice period.
Your employer has to give you this statement within two months of starting your new job, and if they make any changes they must tell you. You also have the right to a detailed payslip with a breakdown of pay and any deductions.
What are my rights around being dismissed or leaving?
There are five potential reasons for fair dismissal: conduct; capability; redundancy (see our explainer here); a legal reason and “some other substantial reason”. Find out more on ACAS here.
Be warned, “some other substantial reason” can include everything from a personality clash with colleagues to dismissing someone covering maternity leave.
If you’re dismissed when you’re pregnant or on maternity leave, your employer must give you a written explanation of the reason.
In all cases, your employer should go through a fair procedure before dismissing you.
“If an employer does not follow a fair procedure before dismissing someone, their dismissal can be unfair even if there are fair grounds for it,” explains Joanne Moseley. “So the reason and procedure go hand in hand – they both have to be done properly.”
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You will generally only have a right to claim unfair dismissal if you have two or more years of service. Make sure you start your appeal within three months of the day you were dismissed.
However, you can appeal against an “automatic unfair dismissal” even if you haven’t worked there for two years (see below).
If you are being dismissed, you are entitled to minimum notice periods depending on how long you’ve worked there. See ACAS for more details.
In cases of gross misconduct, you can be dismissed without notice. But a fair dismissal procedure should still be followed.
If you wish to give your notice to your boss, it’s best to put it in writing. But remember, if you later change your mind your employer does not have to accept this.
How do my employee rights change at two years?
After two years, you can claim unfair dismissal and claim redundancy pay.
But you can still make a claim for “automatic unfair dismissal” without two years’ service if it relates to: an application for flexible working; the National Minimum Wage; the working time regulation; health and safety reasons; discrimination; and whistleblowing.
It could also be automatically unfair if an employer dismisses someone who refuses to return to work because of concerns about Covid-19.
Do I have a right to flexible working?
The government had announced plans to make flexible working a right from day one in the job, but these haven not materialised. Unions and campaigners had hoped they would have been included in the long-awaited Employment Bill, which was dropped from the government’s to-do list this parliamentary session.
Under the proposals, employees would have been able to put in a request for flexible working immediately, rather than wait 26 weeks into the job, as is the requirement under current rules.
The government claimed the new plans will modernise the way Britons work by allowing employees to balance their work and home life. Flexible working arrangements include working from home, job sharing, part time, compressed or staggered hours and flexitime.
However as it stands, employees will continue to wait six months after they’ve started a new job to request flexible working, and bosses can still deny the requests for reasons ranging from impacting employee performance or logistics.
What wages do I have a right to?
The government set national minimum wage is broken down for different age categories. The rate for the highest – 23 and over – has been rebranded as the national living wage, not to be confused with the independently set Real Living Wage.
On April 1 2022, the national living wage increased to £9.50 per hour for people aged 23 and above, a 6.6 per cent rise on the previous rate.
Workers aged 21 or 22 are now entitled to £9.18 per hour (up from £8.36). This decreases to £6.83 for those aged 18 to 20 (up from £6.56), while those under-18 can be paid £4.81 (an increase from £4.62). Apprentices should also be paid a minimum of £4.81 per hour.
The national living wage, for anyone aged 23 and over, is £9.50. So for someone working a full-time job at a 35-hour working week, gross income would work out at about £17,290 per year before tax or pension deductions.
How many hours a week do I have to work?
The working time regulation states employees cannot be forced to work more than 48 hours a week (not including breaks) on average over 17 weeks. Night workers should also only work eight hours in 24 hours on average.
The regulation is based on an EU rule designed to protect employees, so watch out for how this might be affected by Brexit.
Your employer can ask you to opt out of this limit, but remember that you can refuse. If you want to opt out, confirm this in writing.
You also have the right to cancel your opt-out and must give seven days’ notice. Your employer can’t stop you cancelling your opt-out decision.
You might have to work more than 48 hours a week on average if you work in the emergency services, the police, armed forces or other jobs.
“But employers are still responsible for the health and safety of staff and they need to consider whether working long hours puts them at risk,” explains Moseley. “The opt out of the 48-hour working week doesn’t trump that.”
Do I have a right to take breaks from work?
Yes, the “working time” regulation states you have the right to breaks. There are three kinds of break: rest breaks while working (20 minutes), daily rest (11 uninterrupted hours) and weekly rest (24 hours).
All employees have the right to an uninterrupted break of at least 20 minutes if they work more than 6 hours in a day. This should be away from their workstation but it does not need to be paid unless the employment contract says so.
Am I working overtime?
When you’re calculating your hours, you need to consider your overtime.
Overtime is quite complicated. You have to work overtime if your contract says so, although by law you can’t be forced to work more than 48 hours a week on average.
Employers don’t have to pay you for overtime, but you also don’t have to work overtime if that means you’ll earn less than the national minimum wage on average.
There are three kinds of overtime: voluntary (which you don’t have to do), guaranteed and non-guaranteed (which you do).
Importantly, regular overtime should in most cases be factored into your holiday pay.
Remember, overtime does not necessarily count as you working longer to finish something off.
Other kinds of working time may include attending training, travelling around for work and on-call time.
What are my rights around time off in lieu?
Instead of choosing to pay you for overtime, your employer may decide to offer you time off in lieu. You and your employer should keep a written record of your hours.
If you’re part-time and your full-time colleagues are paid for overtime, you have the right to be paid at the same rate – but only when you’ve worked the same amount of hours as your full-time counterpart. If you’re not sure, seek advice.
What are my rights to holiday leave?
As an employee or worker, you have a right to paid holiday and various types of leave. As a full-time employee you’re entitled to 5.6 weeks paid holiday (28 days including bank holidays), but your employer may give you more than that.
If you’re part time, you’re entitled to the same paid leave as your full-time colleagues, but relative to the hours you work pro rata.
Remember, you still accrue holiday when you’re off sick or on parental leave. ACAS has more helpful information.
New ruling on holiday pay and overtime
In the case Harpur Trust vs Brazel, The Supreme Court decided that for people working irregular hours, holiday pay must be calculated according to the amount of time you normally work, including overtime, rather than just your contracted hours.
All regular overtime, travel time payments, extra pay for weekend or anti-social hours shifts or contractual commission has to be included in the calculation.
So, if you work irregular hours, and you’re working a lot of overtime, you might be entitled to more holiday days or holiday pay. Holiday pay must be your ‘normal’ wages which includes any additional pay you get, rather than just what you are contracted to do.
What are my rights around sick leave and pay?
Statutory sick pay is £96.35 per week, paid by an employer for up to 28 weeks. Statutory is the minimum amount, but many employers choose to pay their employees more.
A company may have a sick pay scheme (or occupational scheme) that specifies in an employment contract the number of sick days an employee may take with no loss of income.
Sick pay is not paid for the first three days an employee is out of work due to illness. It is not means tested so will not be affected by an employee’s salary or how much money they have in savings.
The UK’s statutory sick pay policy has been criticised by unions and researchers as being one of the worst in Europe. Here’s how sick pay in Britain compares to the rest of the world. The law on when an employee must supply a sick note has recently changed.
You can now be off work unwell for up to 28 days in a row before you need a note from the doctor. The government hopes that the move will free up GP time to focus on the Covid booster roll out.
Under previous rules, employees were required to show their employer a GP-signed sick note after seven days to receive statutory sick pay or benefit payments.
What are my employee rights to a safe working environment?
Under common law, all employers have a duty of care towards their workers to keep them safe and healthy when they are at work. This includes making sure their environment is comfortable and does not pose a threat to health.
There is currently no legal minimum or maximum temperature for UK workplaces. The government’s Health and Safety Executive recommends a minimum of at least 16C, or 13C if much of the work involves rigorous physical effort, but at present does not state a maximum working temperature.
If a significant number of employees are complaining about thermal discomfort, your employer should carry out a risk assessment, and act on the results of that assessment, the HSE advises.
If you are unable to work from home, or your working conditions cannot be changed to account for unreasonable temperatures, it is possible that you may have to stop working to protect your health.
Independent public body ACAS (the Advisory, Conciliation and Arbitration Service) advises that an employee can refuse to work if they reasonably believe that the working environment is not safe. If that employee is then treated less fairly by the employer as a direct result, they could make a claim to an employment tribunal.
What are my rights around maternity, paternity leave and emergencies?
Women have the right to time off for antenatal care and 52 weeks’ statutory maternity leave, and their partner (regardless of gender) can take one to two weeks’ paid paternity leave. You also have a right to leave for adoption. For parental pay and leave, use this helpful calculator here.
You have the right to time off for emergencies with dependants such as partners, parents or children, but your employer doesn’t have to pay you. Meanwhile, compassionate leave depends on your contract.
When you’re on leave, you have the right to your job or a similar job back when you return.
For other time off such as career breaks, check out this government list.
Are my employee rights affected if I don’t belong to a union?
If you are part of a trade union, you will be able to call on their help and support if you face a situation in your workplace in which you believe you are being treated unfairly or illegally. The union may be able to help you find a resolution with your employer, or fight for money you are entitled to.
“Being a member of a trade union doesn’t reduce your employment rights but might affect your contractual rights,” explains Moseley.
This includes changes to pay or conditions you may not always like.
“For example, during the pandemic, some unions agreed with the employer to cut overtime rates to keep the business afloat during this difficult time.”
But the activities of a trade union – such as securing a pay rise – benefits all workers in a workplace, not just those who are members of the union.
Here’s further information on your right to strike.
Where do I complain or get advice about employee rights?
At present, some options are available to workers but raising grievances is rarely easy. If an employee believes their employee rights are being broken, they are encouraged to report issues around the minimum wage or sick pay to HM Revenue and Customs (HMRC).
The Advisory, Conciliation and Arbitration Service (Acas) exists to help resolve disputes between employers and employees. Acas will encourage both parties to agree to commit to their ruling on the disagreement, but the resulting decision is not legally binding.
An employee who believes they are a victim of mistreatment can try to take their boss to an employment tribunal. This is free and a claim must be made within three months less one day from the date of the grievance, such as the day they were dismissed or experienced illegal treatment.
There currently exists no form of “employment watchdog” in the UK, which is why Citizens Advice Scotland is calling on the government to introduce one. The charity says a watchdog is needed to protect people in low-paid sectors from being exploited by bosses who continue to violate even the most basic of workers’ rights.
You can also get legal advice from Citizens Advice and your trade union.
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