The main piece of legislation covering an employee’s rights is the Employment Rights Act 1996. However, employees are also protected by the Equality Act 2010, the Employment Relations Act 1999 and the Trade Union and Labour Relations (Consolidation) Act 1992.
Section 1 Statement
An employee has the statutory right to be provided with written statement of particulars (section 1 statement) either before or on the first day of employment. Previously this was after two months.
There are some statutory elements that the statement must include to demonstrate compliance with the law, including the names of the parties entering into the contract, place of work, pay, working hours, days of the week, entitlement to holidays, provision for sick pay, pensions and other benefits, including training and any reimbursement of fees.
In reality, many employers still fail to provide the Section 1 Statement on or before day one of employment.
If you don’t provide a section 1 statement and the worker is able to bring a successful claim in tribunal, such as unfair dismissal, they could be awarded an additional 2 – 4 weeks pay for the omission.
Remember, the statement is there to protect your business.
By law, if an employee has worked for less than one month and they don’t have a statement setting out their notice period, they don’t have to give any notice. If they have worked for a minimum of one month, they must provide a minimum of one weeks’ notice, unless, however, there is a serious breach of contract.
Unfair Dismissal
Currently the qualifying period of service to bring a claim for unfair dismissal is two years. There are five potentially fair reasons for dismissal, which are:
- Conduct – inappropriate or unacceptable behaviour
- Capability – an inability to carry out the job or a lack of qualification
- Redundancy – the job is no longer required
- A legal reason e.g. where the employee can no longer carry out their duties, for example because the person has been banned from driving.
- Some other substantial reason e.g. expiry of a fixed term contract, an employee refusing to be employed on new terms and conditions, a client refusing to work with said person, forcing the contract to terminate.
However, the government plan to implement a change, which will remove the qualifying period and make this a day one right via the Employment Rights Bill, first delivered during the Kings speech on 17 July 2024.
For employers, this is an extremely unsettling time, and many are unsure how to navigate this impending change. This is not surprising, given the two-year qualifying period has been in place since 2012.
Research by the CIPD shows that 46% of employers favour the retention of the two year qualifying period, with 16% stating their preference would be a reduction to a one year qualifying period, 9% preferring a six month qualifying period and a further 9% stating that their preference would be to implement this after the expiry of any probation period. Out of the 2,000 employer respondents, only 5% support the removal of the qualifying period for employees from day one of employment.
So, the landscape remains uncertain, and with the overwhelming majority of employers stating they would prefer to continue as is, or at least have a hybrid, it is likely that a lot of negotiation will be needed prior to this being accepted.
In the meantime, we would recommend all managers ensure good working practices become the norm. This includes carefully drafted job descriptions and regular reviews throughout the probationary period to demonstrate that the reason for any dismissal is a potentially fair reason.
Statutory Sick Pay (‘SSP’)
Employees have the right to be paid SSP from day four of any absence, unless the contract is more favourable. It is the government’s plan to implement SSP from day one of employment. They also propose to remove the lower earnings limit. To avoid additional costs, robust absence management procedures should be implemented.
Flexible Working
Prior to April 2024 the right to request flexible working was only available to employees with 26+ weeks service.
This became a day one right on 6 April 2024 as a result of the Employee Relations (Flexible Working) Act 2023.
Employees can now make two requests within a 12-month period, previously it was just one request in that period, and the deadline for an employer to such requests has been reduced from three months to two.
In addition, employees no longer have to detail what impact their request will have on the business. However, the eight business reasons for refusing a request remain the same.
Acas amended the Code of Practice for flexible working requests in April 2024. The importance of clearly documented consultation processes will be the key to avoid subsequent claims in the employment tribunal.