Frequently Asked Questions

Employment

 

 

 

 

Q Do I have a right to join a trade union?

A Everyone has the lawful right to join a trade union of their choosing:

  • You have the right to join a trade union

  • You have the right to take advice from your union

  • You have the right to participate in a trade union

  • You have the right to be accompanied by your UNISON representative


 

Q Can my employer keep me on a fixed-term contract?

 A You cannot be kept on a fixed-term contract forever. After four years you have the right to ask to be made permanent. If the employer cannot justify the continuation of a fixed-term contract for special reasons, you should be made permanent. Failure to renew a fixed-term contract is classed as a dismissal and may be deemed as unfair. back to start

 

Q I have a fixed-term contract – am I entitled to the same treatment as permanent staff?

 A The Fixed-Term Contract Regulations apply to company employees.
They do not apply to contracted-out or agency workers used by the company.

Fixed-term contract staff have the right to equal treatment with permanent staff in:
 

  • Terms and conditions

  • Training

  • Opportunities to seek a permanent post


You have the right to ask your employer for written reasons explaining the differences between a fixed-term and a permanent contract. Your employer has 21 days to reply.

Employers can only defend differences if:

  • They are necessary for a very particular reason

  • The overall package is comparable back to start



 Q Can my employer change my contract?

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

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

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

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

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

Unfair dismissal complaints are always difficult to win, particularly when they concern the unilateral imposition of worse terms and conditions. Your local UNISON representative will consider the following questions:

  • Did the employer have a genuine business reason for the change (even if you disagree with it)?

  • Did that reason merit such serious changes to your contract? Did the employer genuinely try to reach agreement on the changes?

  • Were the changes accepted by a majority of your colleagues?

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

 

Q How can an employee faced with a compulsory change in contract terms react?

A You could try the following:

a) acquiesce (go along with or agree) in the variation
b) resign and claim constructive dismissal
c) refuse to work under the new terms and wait for the employer's reaction
d) stand and sue - work under protest and seek damages

When facing a situation whereby the company or organisation seeks to force a variation in contract terms you need to think carefully about the above.
If you have decided upon rejecting the contract variation you may decide to work to the new contract, but under protest whilst investigating the options.
You need to think carefully about what you are prepared to do before communicating it to the employer (but you must do this quickly or the employer will be lead to believe you have accepted the new contract by default). If you have agreed with the employer to work to the changed contract but under protest and on a temporary basis both sides must keep your word until the situation is resolved or the agreed time limit has lapsed. back to start

 

Q Is everyone entitled to paid holidays?

 A The Working Time Regulations introduced a new right to paid holidays for most workers from 1 August 2003.

As from 1 October 2007, the minimum annual holiday entitlement increased from 4 weeks (20 days for those working a 5 day week) to 4.8 weeks (24 days). On 1 April 2009 there will be a further increase to 28 days. It is important to remember that the new minimum annual leave entitlements, 24 days from 1 October 2007 and 28 days from 1 April 2009, include bank holidays. This means that any employer who already gives 20 days leave plus bank holidays will not be affected by the changes. Note - Bank and public holidays count towards the minimum 24 days entitlement. However, workers and employers can agree longer holidays.

For the first year of work special accrual rules apply. For each month or part of a month of employment, workers are entitled to one-twelfth of the annual holiday. The amount of time that can be taken at any one time within the first year can be rounded up by up to half a day. So someone working 5 days a week who has worked for 2 months would be entitled to take 3 1/3 days’, and can round this up to take 3 1/2 days holiday.

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

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

If you begin work during the leave year, you get the equivalent proportion of the 24 days’ entitlement. The same applies if you leave during the year.

Leave cannot be carried over to the next leave year, although your contract of employment might allow this to happen. Nor can you be paid wages instead of your holiday, except when you leave the job.

Part-timers get equivalent leave. So someone working three days a week gets 14 days’ holiday.

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

These written details must allow you to calculate precisely your holiday entitlement, including any entitlement to accrued holiday pay on termination of employment. (Note: there is no automatic right to accrued holiday pay when your employment ends.)
A collective agreement might specify your holiday entitlement.

As indicated above some workers are not covered by the Working Time Regulations at present. They have no statutory right to paid or unpaid holidays, even public or bank holidays. However they can get these under their contract of employment, whether in writing or through custom and practice.

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

 

Q Am I entitled to public or bank holidays?

 A Only bank workers themselves are entitled to bank holidays. For all other workers there is no automatic right to take bank or public holidays as paid or unpaid leave, or to take time off in lieu. Any right to do so depends on the terms of your contract.

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

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

What is the difference between public and bank holidays?

Public holidays
Generally, public holidays include bank holidays, holidays by Royal Proclamation and 'common law holidays'. Banks are not allowed to operate on bank holidays. When public holidays in the Christmas and New Year period fall on Saturdays and Sundays, alternative week days are declared public holidays.

'Bank' holidays
British bank holidays are Public Holidays and have been recognized since 1871. The name Bank Holiday comes from the time when banks were shut and so no trading could take place.

The 1871 Act designated four holidays in England, Wales and Ireland (then wholly part of the UK), and five in Scotland.

There are currently a total of 8 permanent bank and public holidays in England, Wales and Scotland and 10 in Northern Ireland. These include Christmas Day and Good Friday, which in England, Wales and Northern Ireland are common law' holidays (they are not specified by law as bank holidays but have become customary holidays because of common observance).

The Working Time Regulations (WTRs) give workers a statutory minimum right of 24 days a year. If your contract does not have the minimum paid holidays required by the WTRs, you will be entitled to that minimum by virtue of the WTRs. However, unless agreed otherwise, paid time off on bank or public holidays will count towards the minimum under the WTRs, so you may find that up to 8 of the 20 days are swallowed up by bank or public holidays. As from 1 October 2007, the minimum annual holiday entitlement increased from 4 weeks (20 days for those working a 5 day week) to 4.8 weeks (24 days). On 1 April 2009 there will be a further increase to 28 days. It is important to remember that the new minimum annual leave entitlements, 24 days from 1 October 2007 and 28 days from 1 April 2009, include bank holidays. This means that any employer who already gives 20 days leave plus bank holidays will not be affected by the changes. back to start



 Q Can my employer dismiss me or make me redundant during my pregnancy/maternity leave?

 A You cannot be dismissed or selected for redundancy because of pregnancy or maternity leave, or unlawfully denied the right to return. Claim unfair dismissal, sex discrimination and breach of maternity rights.

If you are made redundant during maternity leave, your employer should give you first refusal of any vacancy/alternative jobs.
Dismissal for exercising any of the new family friendly rights is automatically unfair. back to start
 



 Q If my employer terminates my contract, how much notice do they have to give me?

 A Your contract of employment will usually state the period of notice which both you and your employer need to give to terminate the contract. Your employer must, within two months of the start of your employment, give you written details of relevant notice periods.

If your contract is for a fixed period it will continue until the fixed period expires.
If your contract is not for a fixed period and the notice period has not been expressly agreed, there is an implied term that your contract may be terminated either way on reasonable notice. Factors to be considered in deciding what is reasonable notice are seniority, remuneration, age, length of service and what is usual in your particular trade.
You are entitled to the following minimum period of paid notice from your employer depending on your length of service.

  • 4 weeks to 2 years' service -1 weeks' notice

  • 2-3 years' service -2 weeks' notice

  • 3-4 years' service -3 weeks' notice

  • 4-5 years' service -4 weeks' notice

  • 5-6 years' service -5 weeks' notice

  • 6-7 years' service -6 weeks' notice

  • 7-8 years' service -7 weeks' notice

  • 8-9 years' service -8 weeks' notice

  • 9-10 years' service -9 weeks' notice

  • 10-11 years' service -10 weeks' notice

  • 11-12 years' service -11 weeks' notice

  • Over 12 years' service -12 weeks' notice

Your contract may give you the right to longer notice.

Minimum Notice:
Whatever your arrangements (if any) with your employer regarding notice periods, the notice actually given must not be less than the statutory minimum period of notice.
The notice in your contract of employment must be given if that is a longer period.

 Minimum notice periods are:
For an employee who has been continuously employed for less than two years (but more than one month) = One week.

For an employee who has been continuously employed for two years or more = One week for every complete year worked, up to a maximum of twelve weeks.
You cannot contract out of your right to a statutory minimum period of notice. However you may waive your right to notice or receive pay in lieu of notice. back to start

More UNISON legal help and advice can be found here



 Q If my employment ends, am I entitled to any statutory holiday pay?

 A If your employment ends for any reason including dismissal, you are entitled to accrued statutory holiday pay. back to start



 Q What should I do if I am made redundant or dismissed?

 A Whatever your hours or your length of service, these are the steps you should follow:

  • Act fast as both employment tribunal procedures and company procedures have strict time limits.

  • Contact your local UNISON representative or Regional Officer who will help and advise you throughout.
    You also have a statutory right to have your local UNISON representative with you.

  • Immediately ask your employer for written reasons if you're dismissed.

  • Get UNISON legal assistance and advice, then complete and return any UNISON legal forms which you can get from your branch.

  • Follow your company procedure. Appeal/complain under the company procedure, as well as taking legal action. New rules are coming in setting minimum statutory procedures soon.

  • Get Form IT1 also known as ET1. This is the Employment Tribunal Application Form - your local Jobcentre will have one also.

  • Complete the IT1 form and send it to the local Tribunal Office. If there is time, get your local UNISON representative or Regional Officer to help with the form. If time is running out, do it yourself and send it off (keep a copy if possible). The form can be changed later but not put in late. Make sure it goes in within the time limits (usually three months from date of dismissal).

  • Always tell your local UNISON representative what you're doing. UNISON will help you through each stage. back to start

 

Q Do any statutory rights apply from my first day at work?

 A You are entitled to the following statutory rights and protection from the day you start work - it doesn't matter how many hours a week you work:

  • Equal pay/equal value

  • Age Discrimination

  • Sex discrimination/harassment

  • Racial discrimination/harassment

  • Disability discrimination/harassment

  • Victimisation for trade union membership/activity

  • Victimisation for health and safety activity

  • Time-off for trade union activities/duties

  • Itemised pay statement

  • Unlawful deductions from wages

  • Dismissal because of pregnancy

  • Written reasons for dismissal during pregnancy/maternity leave

  • Time-off for ante-natal visits

  • Ordinary maternity leave

  • Sunday working rights

  • Dismissal/victimisation for enforcing a statutory right

  • National minimum wage

  • Time-off for holidays and breaks

  • Dismissal/victimisation for whistle blowing

  • Pension Trustees victimisation back to start

 

Q Can my union represent me in a grievance or disciplinary hearing?

 A All employees have the lawful right to be accompanied by a friend, colleague or union representative at grievance and disciplinary hearings and appeals. If your employer doesn't recognise trade unions, you may still be accompanied or represented by your union.
This right is available to all workers (including agency and home workers) regardless of the number working for their employer. back to start

 

Q My work Permit as a  Senior Care Worker has been refused. What can I do?


 A It has come to light that the Home Office has taken a policy decision not to issue any more new or renew any existing work permits for senior care workers. The reason given is that senior care workers no longer meet the level required for a work permit.

Practical steps to take

Understandably our members will be very distressed about these developments but there are a number of practical steps we can take to protect your position as far as possible. Each case will turn on its individual facts and circumstances and even if any legal challenge to the Home Office is successful it may not necessarily mean a successful outcome for all UNISON members.

However, there will be some members who will be caught because they possibly should not have been issued a work permit in the first instance as the job that they have been carrying out is not one which requires at least three years of NVQ experience. In those circumstances it may be that they cannot renew their work permit and they would be required to leave the country or make an application for leave to remain based on exceptional circumstances. This is a very difficult application to make out and again each individual case would need to be considered. However, discussions are taking place between UNISON and the Home Office in relation to the criteria and this information will be updated once these discussions have concluded.

Action to be Taken

Information to be sought

Where regional officers and/or branches have senior care workers who have had their work permit application or extension refused, we must obtain the following information:-

a) Name, contact details

b) Brief summary of individual’s experience at NVQ level 3 and/or qualifications at either UK degree level or equivalent or at NVQ level 3

c) Copy of work permit and passport (including visa)

d) Copy of any correspondence between member/employer and Work Permit UK

e) Hourly rate of pay

Once we have obtained this information, we will send it all to the relevant Regional Officers for their attention. Once this information has been gathered, Regional Officers will forward this by email to UNISON’s immigration solicitors with a copy being emailed to our legal officer in UNISON Employment Rights Unit. Remember, you only have 28 days to submit your request from the date posted on the refusal letter.

Members can find out more information from the immigration and nationality directorate www.ind.homeoffice.gov.uk or on 0870 606 7766.

Dismissals

Where a senior care worker is dismissed as a result of a refusal to grant or extend a work permit, these cases will be referred to our legal teams at Thompson's. back to start