Employment Law A-Z

In its simplest form, a dismissal is when an employer terminates the employment contract of their employee with or without notice. Not all dismissals are unfair and this will depend on the circumstances and facts of the particular case and against the principles of case law and the Employment Rights Act 1996.^[1]

In order to claim unfair dismissal you will have to show:

• You are an employee with the correct qualifying service
• The employer does not have a valid reason to justify the dismissal
• The employer acted unreasonably in the circumstances

There are other considerations that employment tribunal look at, such as is the employer:

• consistent with their treatment
• have  investigated the situation fully before dismissing
• not acted discriminatory in their treatment

Have you actually been dismissed?

In order to challenge an employer at an employment tribunal, the employee must show that they have been dismissed, for example:

•    The contract of employment^[2] has ended, with or without notice

•    The refusal to renew a fixed-term contract

•    Being made redundant,^[3] including voluntary redundancy

•    Dismissed you for going on strike

•    Stopped from coming back to work following maternity leave

Evidence will be needed to demonstrate that a dismissal has taken place, such as an official termination letter, or emails and/or text messages from the employer.

There is no dismissed if the employee:

•    is suspended from work

•    Choose to resign unless;

i)    there was pressure to hand in your notice

ii)    the employer did something that was a serious breach of the contract of employment and resigned as a result of that breach

Either of these could amount to a type of dismissal called ‘constructive dismissal’.

What is an unfair dismissal^[4] ?

Employees who have the qualifying period of service have the right not to be subject to an unfair dismissal and employment tribunals will consider whether the employer had legitimate grounds to dismiss the employee from an established list of reasonable grounds, including statutory requirements, redundancies, crime and medical grounds.

The important thing to note is that although these – and others – may be seen as reasonable reasons for dismissal, the central tenets of the case, and the employer’s decisions, attitude and actions during the dismissal process will be key to establishing whether the dismissal was unfair.

What is an automatic unfair dismissal?

Dismissals can also be classed as 'automatically unfair' if the reason for dismissal is connected with the employee exercising specific rights relating to:

•    pregnancy: including all reasons relating to maternity

•    family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants

•    representation: including acting as an employee representative

•    trade union membership grounds and union recognition

•    part-time and fixed-term employees

•    pay and working hours: including the Working Time Regulations, annual leave, unlawful deductions and the National Minimum Wage.

•    Raising legitimate concerns – whistleblowing

•    Discriminatory reasons for the protected characteristics

What is a fair dismissal?

A dismissal can normally be fair if the employer shows that it was for one of the following reasons as set out in the Employment Rights Act 1996:

There are 5 legal reasons for dismissal that are ‘potentially fair’. This means it might be fair if you were dismissed because:

1 Capability or qualification - for example, because of the employee's poor performance or illness the employee has been off sick a lot.

 Before taking any action, the employer should:

•    follow some kind of performance procedures - eg warn you that the work isn’t satisfactory and allow time to improve

•    give a chance to improve - eg by providing training

In regard to Illness before taking action, the employer should:

•    look for ways to support the employee - eg considering whether the job itself is making them sick and needs changing

•    give you reasonable time to recover from the illness

The illness may be classed as a disability and the employer has a legal duty to provide reasonable adjustment in the workplace.

2 Conduct of the employee – for example misconduct such as dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct

In essence it is about not being able to do the job properly, however, before taking any action, the employer should:

•    follow disciplinary procedures

3 Redundancy - employers must follow a fair process and procedure and it must be a genuine redundancy

4 A statutory restriction – this is when continuing to employ the person would break the law - eg if a driver in a lorry firm and loses their driving licence due to speeding

5 A substantial reason - any reason that does not fall within one of the above reasons, for example:

•  unreasonable refusal to accept a company reorganisation that changes the employment terms

•  sent to prison

•  a client expresses a wish that they do not want a particular person on site again

It is not always straightforward and whether the dismissal is actually unfair will depend on all the details of the individual case, for example:

• whether the employer has treated the employee in the same way as other employees in similar situations

• whether the employer has tried to help the employee overcome any issues, for example by providing additional training

• has employer followed a fair procedure including a fair investigation

And overall whether they acted reasonably in treating that reason as sufficient for dismissal.

For some free advice on your circumstances call our Freephone advice line: 0333 772 0611.

Written reasons for dismissal

Employees have the right to request a written statement from their employer giving the reasons why they have been dismissed, provided they are an employee and have completed 2 years’ service.

The employer must supply the statement within 14 days of you asking for it.

The employer must provide a written statement if the dismissal has taken place whilst the employee is on Statutory Maternity Leave.

What is the qualifying period to claim unfair dismissal?

The employee must have worked for the employer for a minimum period before they qualify for the right to claim unfair dismissal at an employment tribunal. If the employee is classed as an employee and started in their position:

• on or after 6 April 2012 - the qualifying period is normally 2 years

There is no qualifying period if the dismissed from June 2013 is because of political opinions or affiliation or any of the other automatically unfair dismissal categories.

In unfair dismissal claims, they must be lodged with an employment tribunal within 3 months of being dismissed and this is now taking part in the ACAS early conciliation process.^[5]

What to do if you are unfairly dismissed?

If you find yourself in the unfortunate situation and feel that you have been unfairly dismissed by your employer, you should always appeal under your employer's dismissal or disciplinary procedures. If this does not work, then you may be able to make a claim at an employment tribunal.

What is a settlement agreement?

A settlement agreement^[1] is a legally binding document between an employee and employer that records the agreement when the employment relationship has come to an end.

This can be either because of redundancy, a disagreement, if there is a break down in the relationship or if there are some kind of disciplinary issues ongoing including the lack of trust and confidence. A settlement agreement is used to agree the terms under which the employee will leave their employment.

It usually involves the employee receiving financial compensation in return for agreeing not to take the employer to court.

What is a Compromise Agreement?

A compromise agreement was a legally binding agreement between an employee and employer when the parties want to set out the terms and conditions reached when a contract of employment is to be terminated or a dispute is to be resolved.

A compromise agreement is the old term that was used before the introduction of the new term settlement agreement, which was on the 29th July 2013.

What is the difference between a Settlement Agreement and a Compromise Agreement?

Prior to 29th July 2013, Settlement Agreements were known as Compromise Agreements and in practice; there is very little difference between a Compromise Agreement and a Settlement Agreement.

One real difference is under the terms of a Settlement Agreements, discussions about the offer of such an Agreement cannot be used in an ordinary unfair dismissal claim unless there has been improper behaviour by the employer.

Is a settlement agreement legally binding?

Yes, as long as various conditions are in place in order for the agreement to be valid:

• The agreement must be in writing

• The agreement must relate to a specific claim that the employee could raise against the employer

• The employee must have received legal advice

You will need to take legal advice from a specialist employment law solicitor and they will make sure that the agreement fulfils all the necessary legal requirements.

Do I need legal advice for a settlement agreement?

In order to be legally binding,^[2] you must receive legal advice as to the terms and effect of the settlement agreement, and it is normal practice for your employer contribute to your legal fees.

Once you sign an agreement you will be waiving all your rights to bring an employment claim, which is why you need legal advice.

A specialist employment solicitor will be able to advise you on the merits of your potential claim and the amount of money you would be likely to receive at an Employment Tribunal.^[3]

How much will it cost?

It is normal practice for the employer to pay a contribution towards legal fees; this can be between £350 and £500 (plus VAT) depending on the complexity of the issues to be advised on.

This is more than likely to cover all your legal fees in a straightforward matter, however, there will be occasions when your employer will be asked to contribute more or you may have to contribute to the solicitors fee, particularly if there are complicated post-termination covenants or a second signing is required where you are working your notice.

ACAS code of practice

To support the introduction of settlement agreement, ACAS has produced a statutory and none statutory code of practice (1).

These explain what settlement agreements are and provide guidance on the new law which concerns the confidentiality of settlement agreement negotiations.

How long do you have to consider the settlement agreement?

Employees should be given a reasonable amount of time to consider the proposed conditions of the agreement; the Acas Code of Practice suggests a minimum of 10 calendar days unless the parties agree otherwise.

Settlement agreements are a voluntary agreement and parties do not have to agree to them or enter into discussion about them. There may be a process of negotiation during which both sides make proposals and counter proposals until an agreement is reached or both parties decide no agreement can be reached.

If a settlement agreement is not reached and depending on the nature of the dispute or problem, resolution may be pursued through a performance management, disciplinary or grievance process, or mediation whichever is the most appropriate. It is important that employers follow a fair process and use the ACAS Code of Practice on Discipline and Grievance procedures because, if the employee is dismissed, failure to do so may be grounds for a claim of unfair dismissal.

Settlement agreement meeting

Although there is no statutory right for the employee to be accompanied at any meeting to discuss the agreement, an employee may want to involve someone to help them, such as a work colleague or a trade union representative. Employers should, as a matter of good practice, allow an employee to be accompanied when meetings are held as this can often help progress settlement discussions.

Ending the employment relationship

When the settlement agreement includes an agreement to end the employment relationship, then employment can end with the required notice, or the timing can be agreed as part of the settlement agreement.

Details of payment and the timing should be included in the agreement; any payments should be made as soon as practicable after the agreement has been reached.

Should I negotiate on the terms of the settlement agreement?

Most of the times employees are very happy with the offer made to them by their employer, especially as the offer can damage the relationship moving forward. They just want to sign the agreement and move on and if you are in that position then great.

There are times, however, when the employee feels that the offer is not what they deserve or appropriate in the circumstances and it may be on those occasions that is right to negotiate the agreement.

How you negotiate is always crucial from raising a grievance to the threat of making an employment tribunal^[3] claim.

It is important to keep in mind that:

• Any employment tribunal claim and process is likely to take between 3 to 6 months and will take longer to recover any money;

• Employment Tribunal proceedings can be a very stressful time;

• There is never any certainty that you will be successful in an Employment Tribunal hearing:

• There is a cost to taking employment tribunal proceedings.

It can be sometimes more productive to try the softly softly approach and use your skills of persuasion as this will bring the whole process to a quicker conclusion.

Taking advice from your solicitor on the best strategy is always advisable.

Agency staff are identified as being “workers” instead of employees.  All workers and this includes agency workers are entitled to certain rights which include the following:

• Annual leave (paid)
• A rest break and a limit on working time
• National Minimum Wage
• No deductions that are carried out unlawfully
• Discrimination rights in accordance with the Equality Act 2010
• Health and safety in the workplace

Are you an agency worker?

You are an agency worker if you have a contract with an agency but you work temporarily for a hirer. Agencies can include recruitment agencies, i.e.‘temp agencies’.

You are also an agency worker if you look for work through entertainment and modelling agencies.^[1]

You are not an agency worker if you:

• find work through an agency but work for yourself - you may be self-employed^[2]

• use an agency to find permanent or fixed-term employment^[3] - check with the company that hired you

• take a ‘pay between assignments’ contract^[4] - you’re an employee of the agency

If you are unsure it is always best to take some advice.

The Agency workers regulations^[5] give agency workers the same treatment as comparable employees in regards to working conditions and basic employment rights once they have been in continuous employment of 12 weeks.

The regulations covers those that have been hired on a temporary basis,  it also covers those agency workers that have been supplied via intermediaries, in order to establish rights set out in the regulations the workers much be able to identify a comparator.

The regulations don't cover the genuinely self-employed, individuals working through their own limited liability company, or individuals working on managed service contracts.

How do the fees work?

Recruitment agencies cannot charge you a fee for finding or trying to find you work.

They can, however, charge you for certain services, for example CV writing, training or transport. You have the right to cancel these as long as you give the agency notice.

If any agency offers you services it:

• must give you full written details of the fee and conditions before charging you - including details of your right to cancel and the notice period

• can’t make you use these services as a condition for finding you work

There are different rules for entertainment and modelling agencies.^[6]

When you want to cancel a service?

You can cancel paid services without a penalty. You must give a minimum of:

• 10 working days’ written notice to the agency to cancel living accommodation

• 5 working days’ notice for all other services, such as training courses

You can make a complaint to ACAS^[7] or take advice from an employment solicitor, if you think your agency has unfairly charged you or it will not refund you during the notice period.

What must your agency give you?

Your agency must give you written terms of employment before looking for work for you.

The written terms should include the following:

• whether you’re employed under a contract for services or a contract of employment

• your notice period

• your pay

• your holiday entitlement

When you’re offered a job the agency must also tell you:

• your start date

• how long the contract is likely to last

• the type of work

• about any expenses you may have to pay

• the location

• your hours

• about any health and safety risks

• about any experience, training or qualifications needed for the role

If your agency changes your terms

An agency cannot change your terms and conditions without telling you. If you agree to changes you must be given a new document with the full details of the changes and the date they changed.

An agency can’t give information about you to any third parties (including current employers or hirers) without your permission.

Are agency workers entitled to Equal treatment?

You have worker’ employment rights^[8] from the first day you start working.

You also have the same rights as your permanent colleagues to use any shared facilities and services provided by your employer, i.e.:

• canteen or food and drinks machines

• workplace creche

• car parking

Rights after 12 weeks

After 12 weeks in the job you qualify for the same rights as someone employed directly by the company. This is known as ‘equal treatment’.

Your rights include:

• ‘equal pay’ - the same pay as a permanent colleague doing the same job

• automatic pension enrolment

• paid annual leave

You won’t be entitled to equal pay if you’re offered a ‘pay between assignments’ contract.

How do I count the 12 week period?

You start counting your 12 week qualifying period from your first day at work.

You don’t have to be at work for 12 weeks in a row - some types of leave count and there can be breaks.

You don’t count the days on sick leave or a break

The qualifying period will pause when you are on sick leave or breaks. Days that don’t count towards the 12 weeks, are when:

• you take a break of 6 weeks or less

• you are on leave due to sickness or injury for up to 28 weeks

• you take annual leave you are entitled to

• the workplace closes, for example for Christmas

• you are on jury service for up to 28 weeks

Can I count time off for pregnancy, paternity or adoption?

Yes, your 12 week qualifying period will continue through time off you have for:

• pregnancy^[9] and up to 26 weeks after childbirth

• adoption leave or paternity leave

If your leave is more than 12 weeks you’ll qualify for equal treatment when you return to work.

What happens when I get a new job or role?

You will start back at the beginning and the 12 weeks will start again, if you:

• get a new job at a different workplace

• have a break of more than 6 weeks between jobs at the same workplace

• stay at your workplace but take a new role that’s ‘substantively different’

A substantively different role is one that’s completely new, different work. It could be a combination of different: i.e.

• skills, or requiring new training

• pay rate

• location or working hours

How does the pay work?

As an agency worker you are entitled to the National Minimum Wage^[10] for all the hours you work, even if you haven’t recorded them on a timesheet, so it is important to keep your own record of hours worked..

As stated above you are entitled to be paid the same as full time permanent staff after 12 weeks and you can ask to be paid the same for doing the same job.

What can I do if the agency withholds your pay?

The agency can legitimately delay paying you while they get proof of the hours you have worked, but only for a reasonable period of time.

The agency cannot refuse to pay you because your hirer’s unhappy with your work - this is a contractual issue between your agency and the hirer.

You can make a claim to an employment tribunal^[11] if your agency is refusing to pay you.

‘Pay between assignments’ contracts

If your agency offers you a ‘pay between assignments’ contract you will be an employee of the agency, not an agency worker so it important to read your contract and take advice if you need clarification.

You will get paid even when you’re not working and you must be given an employment contract.^[12]

You are not entitled to equal pay under a pay between assignments contract, however, the rest of your rights will stay the same.

You must get 50% of your previous pay, calculated at the highest rate of pay received during any one week.

The agency must give you a contract stating the following:

• the type of work you will be undertaking

• that you are giving up the right to equal pay

• minimum pay rates and how they will be calculated

• where you are expected to work

• minimum and maximum working hours (the minimum must be at least one hour)

The agency can’t ask you to come into its office for an hour to avoid paying you between jobs.

You will only get ‘pay between assignments’ for full weeks when you don’t have any work provided by the agency.

If the agency ends the contract:

• it must give you 4 weeks’ pay between assignments

• you may be entitled to certain rights, such as notice pay^[13] and redundancy pay^[14]

Redundancy is a form of dismissal from your job, caused by your employer needing to reduce the workforce. Reasons could include:

• New technology or a new system has made your job unnecessary;
• The job you were hired for no longer exists;
• The need to cut costs means staff numbers must be reduced; and
• The business is closing down or moving.

If your employer is making less than 20 employees redundant in one establishment they will need to consult with employees on an individual basis.

If your employer is making 20 or more employees redundant in one establishment within a 90 day period then your employer must do a collective consultation. However it should not neglect to do an individual consultation either.

Collective redundancies generally occur when there is a:

• Business or building closure, meaning your employer no longer needs as many employees; or
• Reorganisation or reallocation of work.

What is the Correct Redundancy Procedure?

In a redundancy situation, the following things should happen:-

• Your employer should select you fairly;
• You should be consulted about the redundancy;
• You should get any redundancy pay you are due and be given the correct amount of notice;
• Your employer should consider any alternatives to redundancy; and
• You have the right to appeal.

If an employer uses redundancy to cover up the real reason for ending your employment, or if they do not carry out the redundancy procedure properly, it may amount to unfair dismissal. The rights to redundancy payments and collective consultation are claimed separately from unfair dismissal.

If you would like some more information on what support is available to you when being made redundant, give us a call or request a call back for free confidential advice with no obligation.

From time to time we can find our selves dealing with a difficult situation while at work, it may be an unexpected change to your work contract and agreement or you may be facing an uncomfortable and hostile work environment due to harassment and or bullying in the workplace. During these situations it is important to follow the correct and formal Grievance procedure as laid out by the ACAS code of practice. Here, we have detialed everything you need to know about grievances and how to raise one.

How do I raise a formal Grievance?

Most companies will have a grievance procedure within their employee handbook, so it is important you check to make sure you are following your company’s grievance procedure.  A grievance is usually made in writing and should be addressed to either your line manager or if your grievance involves your line manager, to the next level of management. Some companies require a form to be completed, so make sure you check your company’s grievance procedure.

Your letter should be concise and to the point as possible, stick to the facts of your complaint.

Explain how the issues raised have made you feel.

State the key facts of your complaint and explain what happened. Try to include any relevant facts, for example dates/times and witnesses.

Include any evidence you may have to support your grievance for example wage slips in the case of a grievance about pay.

If you have any suggestions as to how to reach a successful outcome then include these, for example moving to a different department.

It is important to remember that raising a grievance is about trying to work together with your employer to find a reasonable solution for everyone.

Make sure that your letter is signed and dated – keep a copy of the letter. If you post the letter it is advisable to send it recorded delivery in order so that you can retain proof of posting and check when it was delivered.

Once I’ve raised a Formal Grievance what happens next?

Your employer may initially investigate your issues and this can include a grievance investigation meeting.

Your employer should invite you to a meeting to discuss your grievance. This should be within a reasonable time frame upon receipt of your grievance. 

You have the right to be accompanied by a trade union representative or a colleague at your meeting. 

You will be asked to discuss your issues and state your case during this meeting.

Your employer should then consider your grievance and advise you of the outcome in writing.

What If I don’t agree with the outcome of the Grievance?

If your grievance is not upheld your employer should provide you with a full explanation of the reason for the decision.

You have the right to appeal against the outcome of the grievance. Your employer will usually give a date of by which time you should have registered your appeal.

Any appeal against the outcome of the grievance should be made in writing stating the reasons for your appeal.

What happens at a grievance appeal?

Your company will invite you to a grievance appeal hearing to discuss the reasons why you do not agree with outcome of the original grievance meeting. This should normally be held by a manager that was not involved in any of the earlier grievance process, however depending on the size/structure of the company this may not always be possible.

You have a right to be accompanied at your grievance appeal by either a colleague or a trade union representative.

The appeal meeting itself is likely to be conducted in similar way to the first grievance meeting.

The employer should let you know the outcome of the grievance appeal and its decision within writing in a reasonable timeframe.

What happens if after the appeal I am still not happy with the outcome?

You should first of all check if your company’s grievance procedure allows a second stage of appeal.  If this is not the case then you may need to decide if it is appropriate to take legal action. It is important that you seek advice as soon as possible as there are time restrictions on Employment Tribunal claims.

Equal rights for mums and mums-to-be

Thanks to the Equality Act (2010),^[1] no employer can discriminate against a woman because she is pregnant or has recently given birth,^[2] or in the case of a pregnancy-related illness, or relating to the right to maternity leave.^[3] As soon as a woman becomes pregnant, she is protected from discrimination until maternity leave ends or she returns to work.

Businesses have to be particularly careful around this issue as, unlike other forms of discrimination, the employee doesn’t have to show that they’ve been treated less favourably than another (non-pregnant) employee, just that they are unlikely to have received the same treatment had they not been pregnant.

The same rules apply

Pregnancy discrimination^[4] can take a variety of forms. It may be that the employee isn’t offered the same training or promotion opportunities as they otherwise would have been or that their pregnancy-related sickness leads to unfavourable treatment. In the worst cases, it could be that a woman is dismissed just before or shortly after returning from maternity leave, is side-lined in favour of another employee or even made redundant on account of her pregnancy.

Women have a right to return to their positions after maternity leave has ended on the same terms and conditions as they had prior to their maternity leave. A forward-thinking employer who values their workforce may be open to flexible working hours or a phased return but this is very much up to individual companies.

Positive discrimination

If the issue of redundancy arises in a workplace, it’s one of the few areas of law where the employer is allowed to discriminate positively in favour of a worker who is pregnant or on maternity leave. In this scenario, the woman could be offered any suitable alternative vacancy without going through the interview process.

Not all employers would opt to follow this guidance,^[5] though, and may not feel obliged to provide another opportunity.

Working parents have the following legal rights:^[1]

• Paid and unpaid maternity leave;

• paid paternity leave;

• paid and unpaid adoption leave;

• to request flexible working hours;

• unpaid parental leave for parents of children under five (18 if your child is disabled); and

• unpaid time off to deal with unexpected problems with the care of dependants.

These rights apply to parents in same-sex as well as in opposite-sex relationships.

Paternity leave

If you are a working father, you are entitled to one or two weeks’ paternity leave when you and your partner have a child. Some other people are also entitled to paternity leave – see below. You can also qualify for paternity leave when you adopt a child. Most fathers will be entitled to statutory paternity pay for their paternity leave. Statutory Paternity Pay is paid at the same rate as Statutory Maternity Pay.

To qualify for paternity leave for a birth, you must:^[2]

• Have been employed by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth;

• be the biological father of the child, or be married to or be the partner of the baby's mother (this includes same-sex partners, whether or not they are registered civil partners);

• have some responsibility for the child's upbringing; and

• have given your employer the correct notice to take paternity leave.

To qualify for paternity leave for an adoption^[3], you must:-

• Be employed for at least 26 weeks by the time you are matched with your child for adoption. (You will not be entitled to paternity leave or pay if you already know the child, for example, if it's your stepchild);

• not be taking adoption leave. (Where you and a partner are adopting a child, one of you can take adoption leave and one paternity leave);

• have some responsibility for the child's upbringing; and

• have given your employer the correct notice to take paternity leave.

When can you take paternity leave?

If you are taking paternity leave for a birth, the leave can start either on the day the baby is born or on a date that has been agreed in advance with your employer.

Your paternity leave cannot start before the baby is born, and, if you are agreeing a date later than the birth of your baby, it must be completed within 56 of days of the birth.

If you are taking paternity leave for an adoption, the leave can start either on the day that the child is placed with you, or on a date that has been agreed in advance with your employer. If you are agreeing a later leave date later than the date your child was placed with you, the leave must be completed within 56 days of the adoption date.

Telling the employer about your paternity leave

You need to be able to show your employer that you are entitled to paternity leave. To do this you must give the employer the following information:-

• Your name;

• the date the baby is due or the date of the birth. If you are adopting a child you should give the date that you were matched with your child or the date on which the child is placed with you;

• the date when you would like your paternity leave (and pay) to start;

• whether you are taking one or two week's paternity leave;

• a declaration that you are entitled to paternity leave; and

• a declaration that you are taking leave to support the mother or care for the child.

You can use self-certificates to provide this information to your employer.

You must also give your employer notice that you want to take paternity leave. The notice must be in writing if your employer asks for written notice. You must give notice 15 weeks before the baby is due or, if this is not practical, as soon as possible once you know you want to take leave. If you are adopting a child, you must give notice no later than seven days after the date you are matched with your child for adoption. If this is not practical you must give notice as soon as possible once you know you want to take paternity leave.

If you change your mind about when you want to take paternity leave you can, but you should give your employer 28 days' notice of the changed date.

Sharing leave^[4]

If you are expecting a child on or after 3 April 2011, or you are adopting a child which is matched with you on or after 3 April 2011, you may be able to share leave between yourself and your partner.

If your partner hasn't used up all of their statutory maternity leave and has gone back to work, you can take the remainder of their leave off instead.

This is called additional paternity leave. You can take this after the baby is 20 weeks old but before they are 1 year old. You have to take the leave all in one go.

You have to give your employer notice that you want to take additional paternity leave. You also have to give them evidence that you are entitled to it. This includes a declaration from your partner that they have gone back to work.

If your partner hasn't used up all their entitlement to statutory maternity pay or maternity allowance, you can be paid additional statutory paternity pay for the rest of the time they were entitled to it.

Adoption leave^[5]

If you are a working parent who has been matched with a child for adoption or if you have had a child placed with you for adoption, you may be entitled to adoption leave. You must have worked for your employer for at least 26 weeks ending with the week in which you are notified you have been matched with a child for adoption.

If you adopt a child from overseas there are different rules. In this case you must have worked for your employer for at least 26 weeks by the end of the week in which you receive official notification, or from the day you started working for your employer.

Adoptive parents are entitled to up to 52 weeks’ adoption leave. Most parents will be entitled to Statutory Adoption Pay (SAP). This is paid at a flat rate of £138.18 a week, or 90 per cent of your normal weekly earnings, whichever is lower. You get SAP for 39 weeks.

You may also be entitled to some adoption pay under your employment contract. Where a couple adopts a child, only one parent is entitled to take adoption leave.

The other parent may be able to take paternity leave. This includes same-sex couples.

Telling the employer about your adoption leave

You must notify your employer that you want to take adoption leave no more than seven days after you have been notified that you have been matched with a child for adoption, or as soon as is practical after this. You must tell your employer the date on which you expect the child to be placed with you and the date on which you want your statutory adoption leave to start and how much leave you want to take.

The partner of a person who adopts, or in a couple the person who is not taking adoption leave, may be entitled to paternity leave and pay.

The right to parental leave

Parental leave is available to anyone who has, or expects to have, parental responsibility for a child. The right applies to each child: an employee with one child may normally take 18 weeks' leave and an employee with two children would be entitled to 36 weeks' leave in total.

All eligible employees may:

• Take a total of up to 18 weeks' unpaid parental leave for each child for the purpose of caring for that child;

• Take the parental leave at any time: Before the child's fifth birthday; before the fifth anniversary of the date of placement in the case of an adopted child; or before the child's 18th birthday in the case of a child entitled to a disability living allowance;

• Benefit from certain contractual rights and obligations during the period of parental leave absence; and

• Return to the same job (or in certain cases a suitable alternative job) after the expiry of the leave.

The right to ask for flexible working^[6]

If you are the parent of a child, you have the right to ask for flexible working if your child is:

• under 17

• under 18 and disabled.

You must also have worked for your employer for at least 26 weeks and must be responsible for your child on a day to day basis.

If you are caring for an adult, you also have the right to ask for flexible working.

Flexible working can include working part time, working school hours, working flexitime, home working, job sharing, shift working, staggering hours and compressing hours (where you work your total number of agreed hours over a shorter period).

Although you have the right to ask to work flexibly, your employer doesn't have to agree to it. However, they must give your request serious consideration and have a good business reason if they decide not to agree.

You can make one request to work flexibly each year. This must be in writing. You should say how you think the change in your working pattern will affect your employer's business and how this might work in practice.

Your employer must also follow a standard procedure for considering your request. This includes having a meeting with you. If your employer wants to turn down your request for flexible working, they must give their reasons in writing. You have the right to appeal if your request is turned down. You must do this in writing, within at least 14 days of getting your employer's decision. You should give your reasons for appealing and make sure your appeal is dated.

If your appeal for flexible working is refused, you may be able to:

• Ask ACAS to help you sort out your dispute with your employer (in Northern Ireland this is the Labour Relations Agency). ACAS has set up a flexible working arbitration scheme to deal with this type of dispute; and

• complain to an employment tribunal.

You can only complain to an employment tribunal under certain circumstances, for example, where your employer hasn't followed the procedure properly for considering your request or where they haven't taken the right information into account when making their decision.

You may also be able to make a claim to an employment tribunal for discrimination. For example, you can make a claim if you are a man and your request to work part-time to look after your children is refused when a request by a female employee would be accepted. If you are a woman, you may be able to make a claim on the basis that refusing to allow you to work flexibly is 'indirect sex discrimination'. This is because more women than men have childcare responsibilities.

You should also bear in mind that an employment tribunal may not be able to over-turn your employer's decision. However, it may be able to force your employer to reconsider your request or to award you compensation.

Maternity rights^[7]

There are a number of rights for pregnant women given by the law. These are known as statutory rights:-

• The right of all pregnant women to take time off work for ante-natal care;

• the right of all pregnant women to work in a safe environment;

• the right of all pregnant women to claim discrimination and unfair dismissal if dismissed because of pregnancy or maternity leave, see under heading;

• the right to take up to 52 weeks’ maternity leave;

• the right of some pregnant women to Statutory Maternity Pay (SMP); and

• the right to return to work after you have had the baby. A refusal to allow you to return to work after having your baby will be a dismissal and will also be discrimination.

Extra rights given by the contract of employment

The statutory rights outlined above are minimum rights. Many workers will have better rights in their contract of employment.

Workers who do not have statutory maternity rights

Some workers do not have any statutory maternity rights. They are:-

• Share fisherwomen;

• women who are normally employed abroad (unless they have a work connection with the UK);

• self-employed women; and

• policewomen and women serving in the armed forces, who are entitled to Statutory Maternity Pay and can claim sex discrimination but who are not entitled to the other rights for pregnant workers.

Time off for ante-natal care

Who qualifies?

Any woman (except some types of workers) who is working and pregnant will qualify, regardless of how long they have worked for their present employer, and regardless of how many hours per week they work.

The right to paid time off

You can have time off for appointments for ante-natal care if your doctor, midwife or health visitor advises that it is needed. Your employer should pay your usual wage for the time off, as long as you only have a reasonable amount of time off.

However, if you take a lot of time off, you may be treated as if you are off sick, and will only get paid if your contract of employment allows for you to be paid sick pay. If you are off sick, you may qualify for Statutory Sick Pay (SSP) or

Employment and Support Allowance (ESA)^[8]

After the first ante-natal appointment, you will have to show your employer, if requested, a medical certificate stating that you are pregnant, and an appointment card for the ante-natal care.

There is no legal right for fathers to have time off work to attend ante-natal appointments. However, the Government recommends that employers allow fathers either to take paid time off, or to make up lost time later.

If your employer refuses time off or refuses to pay for time off

If your employer refuses to allow time off for an ante-natal care appointment or refuses to pay, you can complain to an employment tribunal within three months of the appointment. The tribunal may tell your employer to pay the wages they have withheld.

Right to work in a safe environment^[9]

An employer has a legal duty to make the working environment safe for all employees, and particularly for women of childbearing age, to work in. This means that the employer must assess what health and safety risks there are in the workplace, and specifically, what risks may be posed to pregnant women, women who are breastfeeding and women who have given birth in the past six months.

Where there is a health and safety risk in the workplace, the employer must take action to eliminate the risk by:

• Taking any legal action required, for example, ensuring that pregnant women do not come into contact with hazardous chemicals;

• altering your working conditions or hours of work so you are not put at risk, for example, a shop assistant could be given a chair so she does not have to stand for long periods. Other examples are, a person working at a computer could be given a more comfortable chair or more breaks and a woman whose job entails some lifting could have someone else do the lifting for her;

• if altering your working conditions or hours is not possible, the employer must consider offering you different work, at the same pay; and

• if offering you different work is not possible, your employer must suspend you on medical grounds.

Dismissal or discrimination because of pregnancy

If you are dismissed or treated unfairly because of pregnancy, you can make a claim for discrimination and unfair dismissal to an employment tribunal^[10] (Industrial Tribunal in Northern Ireland). It does not matter how long you have worked for your employer or whether you work full or part-time. This is because the law says that it is discrimination and automatically unfair to dismiss a woman because she is pregnant.

The effect of dismissal for pregnancy on other maternity rights

Dismissal because of pregnancy does not affect your entitlement to any of the other maternity rights. If you qualify for statutory maternity pay and for the right to return to work, you will still qualify if you are dismissed because you are pregnant.

Maternity leave

Most women employees have the right to take up to one year’s (52 weeks’) maternity leave. This does not depend on how long you have worked for your employer. (See Maternity section)

Read out guide outlining detailed information about your rights to maternity leave as laid out by UK employment law and in line with the ACAS code of practice.^[1]

When can your maternity leave start?

You can choose when to start your maternity leave.^[2] It can be at any time in, or after, the 11th week before your baby is due. However, your maternity leave will start automatically if you're off work for any reason to do with your pregnancy from the fourth week before your baby is due.

Telling your employer that you want to take maternity leave

You must tell your employer, preferably in writing, by the end of the 15th week before your baby is due. There may be occasions that this may not be possible, for example because you didn’t realise that you were pregnant, then you must inform the employer as soon as possible.

You must inform your employer:

• that you're pregnant

• the date your baby is due

• the date you want your maternity leave to start, you can change this date if you give your employer 28 days’ notice

You must produce a medical certificate (MATB1),^[3] if your employer asks for one, showing when your baby is due. You can get your MATB1 from your midwife or GP after you have been pregnant for 21 weeks. Once your employer has received your notice that you want to take maternity leave, your employer must write to you within 28 days and tell you the date your maternity leave runs out and therefore the date when you are expected to return to work from maternity leave.

How much maternity leave will you get?

Most women employees have the right to take up to one year’s (52 weeks’) maternity leave.^[4] This is a mixture of 26 weeks Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave.

To qualify for Statutory Maternity Leave you must be an employee and give your employer the correct notice. If this is satisfied you can take Statutory Maternity Leave no matter how long you have worked for your employer, how many hours you work or how much you are paid.

The only employees who don't have this right are:

• share fisherwomen

• women who are normally employed abroad (unless they have a work connection with the UK)

• self-employed women

• Policewomen and women serving in the armed forces.

You can choose how long you take off work for maternity leave, up to a maximum of 52 weeks. However, the law says that you must take at least two weeks immediately after the baby is born. If you work in a factory, you must take at least four weeks.

What are your employment rights whilst working and pregnant?

When you are working and you’re your pregnant, your employer must protect your Health and Safety and you may have the right to paid time off from work for antenatal care. You are protected against unfair treatment by your employer.^[5]

Your basic rights when working as you are pregnant.

• Paid time off from work for antenatal care

• Maternity pay and benefits

• Maternity leave

• Protection against unfair treatment and/or dismissal

• Obligations to ensure your Health and Safety

Time off from work for antenatal care

All pregnant employees are entitled to reasonable time off work for antenatal care,^[6] regardless of how long they have been in the employment. Any time off must be paid at your normal rate of pay and it is unlawful for your employer to refuse to give you reasonable time off for antenatal care or to pay you at your normal pay.

Your employer is entitled to ask you for evidence of your antenatal appointments from the second appointment onwards. If you are asked, you should provide to your employer a medical certificate showing your pregnant and an appointment card or some other written evidence of your appointment.

Antenatal care may include relaxation or parent classes as well as medical examinations, as long as they are recommended by your doctor. It is important, if you can, to try and avoid taking time off work when you can reasonably arrange classes and appointments outside of working hours.

What are your employment rights while on maternity leave?

The first 26 weeks of maternity leave are called Ordinary Maternity Leave (OML).

During OML, you will still get all the same rights under your contract of employment as if you were still at work. The only exception is that you will not get your normal pay unless your contract allows for it. But you will, for example, still be entitled to build up holiday and to get any pay increase.

Though you are not entitled to your normal pay, most women employees are entitled to Statutory Maternity Pay or Maternity Allowance.

As well as Ordinary Maternity Leave (OML), you can also take an additional 26 weeks' maternity leave. This is called Additional Maternity Leave (AML). This gives a total of up to 52 weeks’ maternity leave. If you're taking AML, this must follow on directly after OML and there must be no gap between the two.

Your terms and conditions of employment remain the same throughout both OML and AML. Whether you are entitled to be paid during all or part of your maternity leave depends on your contract of employment and whether you are entitled to Statutory Maternity Pay (SMP).

Keeping in touch with your employer during your maternity leave

When you are on maternity leave, your employer should keep you informed of issues which may affect you.^[7] For example, you should be informed of any relevant promotion opportunities or job vacancies that arise during your maternity leave.

The amount and type of contact between you and your employer must be reasonable. Contact can be made in any way that best suits either or both of you. For example, it could be by telephone, by email, by letter, by you making a visit to the workplace or in other ways.

You are also allowed to work for up to ten days during your maternity leave without it affecting your maternity pay. These are called 'Keeping in Touch Days'.

Both you and your employer must agree about whether you work any Keeping in Touch Days, how many you will work, when you will work them and how much you will be paid for them. You are under no obligation to work them and your employer is under no obligation to offer them to you.You must also agree between you what sort of work you will do. Keeping in Touch Days could be particularly useful in enabling you to attend a conference, undertake a training activity or attend for a team meeting.

The rate of pay is a matter for agreement with your employer. It may be set out in your employment contract or agreed on a case-by-case basis. However, you must be paid at least the National Minimum Wage.^[8]

Maternity leave and continuous employment

Some employment rights, such as the right to claim statutory redundancy pay, depend on how long you have worked for your employer. The length of time you have worked for your employer is the length of your ‘continuous employment’. It is important, therefore, to note that time spent on maternity leave counts when calculating how long you have been with your employer.

Your right to return to work after maternity leave

Your employer will assume that you will take all 52 weeks of your Statutory Maternity Leave. Before you go on maternity leave, your employer should tell you the date your maternity leave ends. This will be 52 weeks after your maternity leave starts. However, you and your employer may agree on a different date for your maternity leave to end. If you decide you want to return to work earlier than this, you must give your employer eight weeks’ notice in writing of your new date of return to work.

Right to return after your Ordinary Maternity Leave

All women have the right to return to their old job after 26 weeks’ Ordinary Maternity Leave.

If your employer refuses to let you return after your Ordinary Maternity Leave

If you're not allowed to return to work after your Ordinary Maternity Leave, you may be able to:

• make a claim for unfair dismissal, and

• make a claim for discrimination because of pregnancy and maternity leave.

Both of these claims can be made regardless of how long you have worked for your employer or how many hours a week you work.

If you are sick at the end of your Ordinary Maternity Leave

If you're sick when you are due back to work at the end of your Ordinary Maternity Leave (OML), you must get a medical certificate to send to your employer. Your OML will end at the end of the 26th week and you will then go onto sick leave. You will be protected from unfair dismissal for an additional four weeks after your 26 weeks’ OML if you are sick for this period.

Right to return to work after your Additional Maternity Leave

If you wish to return to work after AML, you should be offered your old job back, unless this is not reasonably practical. If it is not reasonably practical to offer you your old job back, you must be offered a job that is suitable for you and appropriate in the circumstances, on the same terms and conditions as your old job.

For example, your pay must be at least the same as your old job.

Right to return part time

You have no automatic right to return to work part time after maternity leave. However, you may have the right to ask for flexible working^[9] and this request must be considered seriously by your employer. If they do not consider it seriously, this could be discrimination.

Maternity pay

While you are on maternity leave, you may be entitled to maternity pay either under your contract of employment or by law through Statutory Maternity Pay or

Maternity Allowance, which can be paid for up to 39 weeks. The rules about maternity pay depend on how long you've worked for your employer, how much you earn and what your contract says.

Statutory Maternity Pay

Statutory Maternity Pay will be payable if you have been employed continuously for at least 26 weeks ending with the 15th week before the expected week of the child’s birth, and has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. Statutory Maternity Pay is payable for 39 weeks; the first 6 weeks it is paid at 90% of the average weekly earnings. The following 33 weeks will be paid as the Statutory Maternity rate or 90% of the average weekly earnings whichever is the lower. The Statutory

Maternity Pay rate is £136.78 from April 2013 per week , which is reviewed every year.

Breastfeeding

You should let your employer know, preferably in writing if you are planning to breastfeed when you return to work.^[10] Ideally you should do this before you return to work in order for your employer to put any plans in place. Your employer must carry out a risk assessment to identify any risks to you as a breastfeeding mother or to your baby. You employer must do all that is reasonable to remove the risks and provide a suitable rest facilities. Ideally your employer should provide private, healthy and a safe environment for nursing mothers to express and store milk, although there is no legal requirement to do so.

Other parental rights

If you’re pregnant or have just had a baby, you may have other rights. These rights include:

• the right of all pregnant women to take time off work for ante-natal care

• the right of all pregnant women to work in a safe environment

• the right of all pregnant women to claim unfair dismissal if dismissed because of pregnancy.

Till death do us part?

Every business should aim to adopt a policy of equality and fairness.^[1] So it’s important that a company understands its obligations to treat individual employees even-handedly, as many rights are enshrined in law and can land the unwary in hot water.

When it comes to marriages and civil partnerships, the Equality Act (2010)^[2] makes it unlawful to discriminate against someone because they are married or in a civil partnership.^[3] While this seems clear - and fair - misunderstanding the practical application of the law can lead to disgruntled employees and possibly result in costly legal battles.^[4]

Respect and responsibility

Many of the issues covered by the Equality Act are founded on common sense. Essentially, employees who are married or in a civil partnership – whether same- or opposite-sex – have the same rights as those who are single. Employers mustn’t discriminate on the grounds of their marital or partnership status, nor on account of their sexual orientation.^[5] This applies to recruitment and selection procedures as well as to areas such as pay and promotion.

Discrimination can take several different forms and businesses do need to be vigilant if they are to stay within the legal framework. For instance, when considering someone for promotion, it’s not fair to rule someone out because they’re married and might not be prepared to travel/work late/entertain customers in the way it’s assumed that a single person would.

A level playing field

In general terms, a company’s terms, conditions and benefits shouldn’t disadvantage or exclude anyone based on their sexual orientation or marital status. Employment policies should give thought to issues of flexible working, parental leave and discretionary benefits (such as extra days off when an employee marries).

That said, an employer may be able to justify varying terms and conditions if there is an important factor unrelated to partnership status – perhaps connected with professional experience, qualifications or a geographical location, for example. The best approach? Keep things on the level.

Who has the right to paid holidays?

Most workers have the right to take a minimum amount of paid holiday each year. This is called statutory holiday.^[1]

You have the right to take statutory paid holiday from work if you are a worker. This includes people who work full-time, part-time, agency workers and casual workers. Only people who are self-employed and a few other exceptions will not be entitled to statutory paid holiday (see below).

The rules about statutory holiday apply regardless of how long you have worked for your employer.

You have the right to take 5.6 weeks^[2] paid holiday a year.

Before 1 April 2009, your right to paid holiday from work was 4.8 weeks. Your leave year may have started before 1 April 2009 and carries on after 1 April 2009.

If so, your annual leave will be worked out on a pro-rata basis – 4.8 weeks pro rata for the period before 1 April 2009 and 5.6 weeks pro rata for the period from 1 April 2009.

Your contract of employment may give you the right to take more than the statutory amount of paid holiday. However, it cannot give you less. If your contract gives you the right to take more than the statutory amount of paid holiday, this is called contractual holiday.^[3]

Workers who do not have the right to statutory holiday

There are some workers who are not entitled to statutory holiday.

You won't have the right to statutory holiday if you work in:

• the armed forces

• the police

• the civil protection services.

However, if you're not entitled to statutory paid holiday, your contract of employment will probably give you the right to take contractual holiday.

How much paid holiday can you take?

You are entitled to a minimum of 5.6 weeks' holiday a year.^[1] This is called statutory holiday.

To work out how many days holiday you can take a year, you need to multiply 5.6 by the number of days you work in a week.

For example:

• if you work a five-day week, you are entitled to 28 days' paid holiday a year (5.6 X 5).

• if you work 2.5 days a week, you are entitled to 14 days' paid holiday a year (5.6 X 2.5).

The maximum amount of statutory paid holiday you can be entitled to is 28 days.

This applies even if you work more than five days a week.

Your contract of employment may give you the right to take more than the statutory amount of paid holiday. However, it cannot give you less. For example, if your contract of employment says you can only take 10 days' paid holiday a year and you work five days a week, you will still be entitled to take 28 days' paid holiday.

If your normal working week is expressed in hours, your statutory leave may be expressed in hours too.

Before 1 April 2009, you were entitled to 4.8 weeks paid holiday a year. If your leave year includes time before 1 April 2009, your annual leave will be worked out on a pro-rata basis – 4.8 weeks pro rata for the period before 1 April 2009 and 5.6 weeks pro rata for the period from 1 April 2009.

What is a leave year?

A leave year is a one-year period in which you get your years’ worth of leave. Your employer will usually agree the start and end of the leave year with you. Some leave years start on 1 January and finish on 31 December. Others start on 6 April and finish on 5 April the following year.

If you and your employer have not agreed when the leave year should start and finish, the leave year will start on:-

• 1 October (23 November in Northern Ireland), if you started work with your employer on or before 1 October 1998 (23 November 1998 in Northern Ireland). Each leave year after this will start on the following 1 October (23 November in Northern Ireland); or

• the date you started work for your employer, if you started work after 1 October 1998 (23 November 1998 in Northern Ireland). Each leave year after this will start on the anniversary of the date on which you started work.

If you start work partway through your leave year, the amount of leave you get depends on how much of the leave year you have worked. For example, if you start work in April in a company where the leave year starts on 1 October, you have started half-way through the leave year. You will therefore get half the annual paid leave for that year. There are special rules if you are in your first year of employment.

Bank and public holidays

You do not have an automatic right to take bank or public holidays^[4] off work, with or without pay. This will depends on your employment contract.

Your employment contact may say that you have the right to statutory holidays or it may not say anything about contractual holidays or statutory holidays. In these cases, your employer can:

• Ask you to work bank or public holidays, or

• give you bank and public holidays off and pay you for them but ask you to count them towards your statutory holiday entitlement, or

• do a combination of all of these.

Your employment contract^[5] may give you bank or public holidays off on top of your statutory holiday. If this is the case, your contract will specify this and also say whether you will be paid for these days. The situation can be complicated if your contract says nothing about bank and public holidays.

What your contract must say about holidays

If you are an employee you are entitled to a written statement of your terms and conditions of employment as long as you have worked for your employer for one month. You are an employee if you have a contract of employment. Many employers do not give their employees a written statement of the main terms and conditions of the job even though the law says they have to. If your employer does not give you the written statement within two months of the date on which you started work, they will be breaking the law.

The written statement^[6] must contain information on your right to holidays, including public holidays and holiday pay. Your employer must give you enough information to work out your entitlement to holidays and holiday pay, and your right to any holiday pay you may have built up when you leave your job.

How much holiday pay should you get?

Your employer will pay your holiday pay at the same rate as your normal pay. You may get a higher rate of holiday pay if your contract gives you the right to a higher rate.

Some employers and employment agencies may say that your hourly rate of pay includes an amount for holiday pay, and that they expect you to save this part of your pay to cover your holidays. This is known as 'rolled up' holiday pay. Rolled up holiday pay is against the law.

Your right to paid holiday from the day you start work

If you are a worker who has the right to paid holiday you have this right from your first day of employment. However, this does not mean you can take all of your leave as soon as you start work. During your first year you can be restricted to only taking holiday that you have accrued.

What notice must be given before you take holiday?

If you have not got an agreement with your employer about how much notice you have to give before you can take holiday the following rules apply:

• your employer can make you take all or any of your holiday at a particular time, as long as they give you notice. This notice must be at least twice as long as the holiday they want you to take. For example, if your employer wants to have a Christmas shutdown for one week, they have to give you notice of the date the holiday is to start at least two weeks before it starts.

• you must give notice to your employer when you want to take holiday. This notice must be at least twice as long as the holiday you want to take. For example, if you want to take three days’ leave, you must give your employer notice of this at least six days before your holiday is due to start.

Your employer can refuse to let you take holiday. To do this they must give you notice equal to the holiday you want to take. So if you have asked to take two weeks’ holiday and have told your employer four weeks before the date you want your holiday to start, your employer must tell you two weeks before your holiday is due to start that you cannot take the holiday.

Your employer refuses to let you take holiday

If your employer refuses to let you take any holiday, you should usually try to sort it out informally with them first. If this doesn't work, you may need to raise a grievance.

For If you have tried to raise the issue with your employer and are still not happy with the outcome, you can ask an employment tribunal to enforce your right to take holiday. If you make a claim to a tribunal, you must do this within three months of your employer's refusal to let you take holiday.

If you have given your employer the right notice of holiday, you are generally entitled to take it. However, under certain kinds of agreement between you and your employer, they can refuse your request for holiday. They can also refuse your request for holiday if they have given you the proper notice of their refusal. However, if your employer has not given you proper notice of refusal but still refuses to let you go on holiday, you can claim compensation at an employment tribunal. You should raise a formal grievance with your employer first (see above).

Untaken holiday

If you cannot use up all of your holiday in one leave year, you may have the right to carry some of it over to the next leave year.

Generally, you are not allowed to carry over statutory holiday from one year to the next. Statutory holiday is the minimum amount of paid holiday you have a right to take by law.

Your employment contract may give you contractual holiday on top of statutory holiday. If your contract gives you contractual holiday, you may be able to carry over some of this holiday to the next leave year. You can only carry over contractual holiday if your employment contract says you can. You may also be able to be paid for any contractual holiday you have not taken, depending on what it says in your employment contract.

If you cannot use up all your paid holiday because your employer will not let you take the holiday before the leave year ends, you should seek the help of one of our experienced advisers for a free consultation.

Unpaid holiday

When you leave your job you should be paid any holiday pay owed to you. If you employer refuses, you can ask an employment tribunal^[7] to enforce your rights. You must make a claim within three months of the date your employment ended.

If your employer refuses to pay you holiday pay, you can ask an employment tribunal to enforce your rights. You may be able to make a claim for all your unpaid holiday pay, even if it goes back for more than a year. You must make a claim within three months of the last date you were not paid holiday pay.

What happens to your holiday if you are off sick?

If you are off sick, you will be entitled to build up statutory paid holiday while you are off work. When you return to work, you can ask your employer if you can take the holiday you have built up before the end of the leave year. If you have had your employment terminated while you were off sick, you are entitled to be paid all the statutory holiday pay you have built up.

If your employer refuses to let you take holiday on your return to work or refuses to pay you statutory holiday pay you have built up if your job has ended, you can ask an employment tribunal to enforce your rights. You may be able to make a claim for all your unpaid holiday pay. You must make a claim within three months of the last date you were not paid holiday pay.

You will only be entitled to build up contractual holiday while you are off sick if your contract allows for this.

Holidays and maternity/paternity and adoption leave

Most women employees have the right to 52 weeks’ maternity leave. During this period, you have the right to build up your statutory holidays in the same way as if you were at work. Statutory holiday means the minimum holiday you are entitled to by law. Your contract may give you more holiday than this.

Working parents may be entitled to paid paternity or adoption leave. During paternity and adoption leave, you have the right to build up your statutory holidays in the same way as if you were at work. Statutory holiday means the minimum holiday you are entitled to by law. Your contract may give you more holiday than this.

Seasonal workers

Some workers, for example, seasonal workers, have contracts, which say they only work for part of the year. For example, your contract may run for 42 weeks out of 52, and your employer tells you to take unpaid leave for the remaining ten weeks before you start working for them again. In this situation your holiday rights depend on whether you have a contract of employment or not, and whether it continues during the time you are not working.

Leaving your job

If you have not been able to take all the holiday you have built up before your job ends, you have the right to be paid for all accrued but untaken holiday.

If your employer refuses to pay you for untaken holiday

Your employer may refuse to pay you for untaken holiday if you are leaving or have left your job. If you are in this situation you can enforce your right to pay for untaken holiday at an employment tribunal. If you are in this situation you may have to raise a written grievance with your employer first.

If you owe holiday when you leave your job

If you have taken holiday you were not entitled to and you leave your job, your employer can sometimes make a deduction from your final pay for holiday you owe. The law in this area is complicated and you should seek further advice.

Holiday pay if your employer becomes insolvent

If your employer becomes insolvent, you may be able to claim money owed from the National Insurance Fund. You can claim up to six weeks’ holiday pay. This may be for holidays you have taken but have not yet been paid for, or for holiday pay you have built up.

The 2010 Equality Act^[1] took effect from 1 October meaning workers have new rights that will help stamp out pay discrimination. Measures include stopping employers from using pay secrecy or 'gagging' clauses to hide unfair differences between what men and women are paid.

2010 Equality Act takes effect from 1st October

Around 90 per cent of the new act has now come into force, making the law simpler by bringing together nine pieces of legislation under a single banner. Key law changes introduced on 1 October include:

• Making pay secrecy 'gagging' clauses unenforceable - protecting employees who discuss their pay with each other for the purposes of uncovering discrimination;

• extra protection for disabled people - limiting the circumstances in which employers can question job applicants questions about disability or health prior to offering them a job;

• new powers for employment tribunals - they can now make recommendations that will affect an employer’s whole workforce (not just particular employees who sue their employer); and

• new responsibilities for employers to protect their staff from harassment by customers, where possible.

Men and women doing equal work and work rated as of equal value are entitled to equal pay. Employers may wish to carry out a pay audit to ensure that men and women are getting equal pay according to the Equality Act 2010

Employers must give men and women equal treatment in the terms and conditions of their employment contract if they are employed on:

• 'Like work’ – work that is the same or broadly similar;

• work rated as equivalent under a job evaluation study; and

• work found to be of equal value.

A woman is employed on 'like work' with a man if her work is of the same or a broadly similar nature. It is for the employer to show that there is a genuine reason for any difference in pay,^[2] which is not based on the sex of an individual.

Employees are also entitled to know how their pay is made up. For example, if there is a bonus system, everyone should know how to earn bonuses and how they are calculated.

If you cannot resolve the problem informally, you may complain to an employment tribunal^[3]under the Equality Act 2010 while still working in the job or up to six months after leaving the employment to which your claim relates.

Normally, you may claim arrears of remuneration (which includes sick pay, holiday pay, bonuses, overtime etc as well as 'pay') for a period of up to six years (five years in Scotland) before the date of your tribunal application.

Tribute to equal pay women strikers

A new British film released as the act took effect is based on the story of women workers at the Ford assembly plant in Dagenham, East London. In 1968,^[4] women at the plant went on strike to demand equal pay. Their actions led to the creation of the 1970 Equal Pay Act.^[5]

The Home Secretary and Minister for Women and Equality, Theresa May, met four of the original strikers recently.^[6] She said: "Thanks to pioneers like the women who feature in 'Made in Dagenham', the workplace is much fairer than it was in 1968. But there is still plenty of room for improvement.

"From today the gagging clauses that stop people discussing their pay with their colleagues will be unenforceable, allowing women - and men - to find out if they're being paid unfairly."

Simplifying equality law

The nine pieces of legislation being brought together under the Equality Act are:

• Equal Pay Act (1970);

• Sex Discrimination Act (1975);

• Race Relations Act (1976);

• Disability Discrimination Act (1995);

• Employment Equality (Religion or Belief) Regulations (2003);

• Employment Equality (Sexual Orientation) Regulations (2003);

• Employment Equality (Age) Regulations (2006);

• Equality Act (2006); and

• Equality Act (Sexual Orientation) Regulations (2007).

Discrimination is when you are being treated differently to others because of one of the ‘protected characteristics’. There are, however, occasions when some forms of discrimination maybe allowed, i.e employing only a woman to work at a women’s refuge.

The law protects you against discrimination at work, this includes:

• Dismissal

• Pay and conditions

• Promotion and training

• Employment terms and conditions

• Recruitment and redundancy

If you are being treated differently from other people the pages below will explain who is protected against discrimination in the workplace^[1] and what to do if you are.

When are you protected from discrimination?

The Equality Act 2010^[1] provides protection from discrimination if you are being treated unfairly because of one or more of the nine protected characteristics. We all have some of these characteristics – for example, sex and age.

What are the ‘Protected Characteristics?

The protected characteristics^[3] that are protected by the Equality Act 2010 are:

•  Age

• Disability

• Gender reassignment

• Marriage and civil partnership

• Pregnancy and maternity

• Race

• Religion or belief

• Sex

• Sexual orientation.

What is discrimination?

The Equality Act 2010 aims to create a 'level playing field' so that people are employed, paid, trained and promoted only because of their skills, abilities and how they do their job.

Discrimination^[4] happens when an employer treats one employee less favourably than others. It could mean a female employee being paid less than a male colleague for doing the same job, or a minority ethnic employee being refused the training opportunities offered to white colleagues. It can also happen when work colleagues or managers are treating someone differently and less favourably to others, being given the worsts jobs all the time or office banter going too far day after day and no one is taking any action.

What is discrimination by association and perception?

As a result of the Equality Act 2010, there are occasions that you don't have to have a protected characteristic to be directly discriminated against for it. There are two forms of discrimination that deal with this: discrimination by association and discrimination by perception.

Discrimination by Association

Associative discrimination^[5] comes about when someone is treated unfavourably on the basis of another person's protected characteristic.

The Equality Act protects employees if there are people in their life, i.e. family members or friends, who have one or more of the protected characteristics and you are treated unfairly because of that, this is called discrimination by association.

For example, a female employee gives birth to a disabled child. On returning to work after maternity leave, applies for a promotion and is turned down and a less qualified colleague (also a mother, but whose child is not disabled) is given the job because the employer thinks that the employee with the disabled child will need more time off and be less reliable.

Discrimination by association doesn't apply to all protected characteristics. Marriage and civil partnership, and pregnancy and maternity are not covered by the legislation.

Nor does it apply to instances of indirect discrimination by association - it has to be direct. However, there are developments in the European Court of Justice, which suggest that this is an area that could change.

Discrimination by Perception

The Equality Act protects employees when they are treated unfavourably because others believe they have a protected characteristic, even though in reality they don't have it, it is perceptive discrimination.^[5]

A possible example of this is an employee who is rejected for promotion to a supermarket buying team that sources wines, because they have an Arabic name. The employer has assumed that they are a Muslim and won't want to deal with alcohol or an employer rejects a job application from a white woman whom they wrongly thinks is black because the applicant has an African-sounding name.

This could be considered discrimination by perception, whether or not the employee is a Muslim or whether or not the woman is black.

As with associative discrimination, perceptive discrimination does not apply to marriage and civil partnership, nor pregnancy and maternity, and it must be direct discrimination.

What happens if you complain about discrimination, are you protected?

The Equality Act protects employees, if you are treated badly and unfairly because you have made a complaint about discrimination or stood up for discrimination rights, this could be for yourself of in support of someone else.

What should employers have in place regarding discrimination?

Employees have a legal responsibility to ensure that they have policies and procedures in place to prevent discrimination in the following areas:

• Recruitment and selection

• Pay and other terms and conditions of employment

• Training and development

• Promotion opportunities

• Discipline and grievances

• Countering bullying and harassment

• Dismissal.

Why are you being treated differently?

Not all-unfair treatment is unlawful discrimination and is protected by the Equality Act. It is only unlawful discrimination if you are being treated differently because of one of the protected characteristics stated above.

It also doesn’t matter if the person treating you differently to others didn’t mean to discriminate against you or even if they didn’t know they were discriminating. If someone is treating you less favourably because of a protected characteristic, its discrimination.

What is meant by less favourable treatment?

Less favourable treatment means, you are been treated differently to someone else who doesn’t have the same protected characteristic as you and as a result you are in a worse position because of the treatment.

Who have you been treated less favourably than?

To show direct discrimination, you will need to compare your treatment with the treatment of someone else who does not have the same protected characteristics as you. The Equality Act calls this person a comparator.

What types of discrimination can happen at work?

Unlawful discrimination can take a number of different forms: this can be direct, indirect, harassment and victimisation.

What is Direct discrimination?

Direct discrimination^[6] happens when an employer treats an employee less favourably than someone else because of one of the above reasons.

For example, it would be direct discrimination if a driving job was only open to male applicants or the promotional training courses are always given in preference to the white employees.

There are limited circumstances in which an employer might be able to make a case for a genuine occupational requirement for the job. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptised Catholics only.

Direct discrimination on the basis of age, for instance, may occur in one of three ways.

Someone may be treated on less favourable terms due to:

• Their actual age (direct discrimination)

• Their perceived age (direct discrimination by perception)

• The age of a person with whom they associate (direct discrimination by association).

Direct discrimination on the basis of a person’s actual age is the only kind of direct discrimination that may have a lawful purpose – that is, it may be objectively justified as what the law considers “a proportionate means of achieving a legitimate aim.”

In order to be deemed lawful, the discrimination must be proportionate, appropriate and necessary. For example, economic considerations, such as the needs of a business, may be a legitimate aim.

What is Indirect discrimination?

Indirect discrimination^[7] is when a Provision, criteria or practice disadvantages one group of people more than another. For example, saying that applicants for a job must be clean shaven puts members of some religious groups at a disadvantage or an absence management policy states that you must not have any time off on sick leave or you will be disciplined, this could disadvantage someone with a disability.

Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if it is necessary for the way the business works, and there is no other way of achieving it. For example, the condition that applicants must be clean-shaven might be justified if the job involved handling food and it could be shown that having a beard or moustache was a genuine hygiene risk

What is Harassment?

You have the right not to be harassed or made fun of at work or in a work-related setting (i.e. an office party). Harassment^[8] means any undesirable conduct that has the intention or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment. For example, allowing displays or distribution of sexually explicit material or giving someone a potentially offensive nickname.

What is Victimisation?

Victimisation^[9] means treating somebody less favourably than others because they tried to make, or have made a complaint about discrimination or supported someone who has made a complaint of discrimination. For example, it could be preventing you from going on training courses, taking unfair disciplinary action against you, or excluding you from company social events.

Being treated unfairly for other reasons

If you are treated unfairly but it is not for one of the reasons listed above, it may be that you are being bullied. Bullying should never be acceptable in the workplace.

If you think you have experienced discrimination because of mental health problems find out more about mental health issues in the workplace by following the link below.