Contracts Of Employment For Employees

Do you have any rights if you don’t have an employment contract?

Even if your employer has not provided a written contract, you still have an enforceable contract based on terms introduced by custom and practice. You can also rely on implied terms such as the duty of trust and confidence which is an essential component in determining the relationship between employer and employee.

The problem with not being given a written contract is that this can lead to ambiguity and disputes.

When is a self-employed contractor really an employee?

Sometimes an employment relationship will exist even though you are treated as if you are self-employed. Employment Tribunals will disregard the actual written contract if they believe that working practices do not reflect this arrangement and the contract is “a sham”.

The main test in examining whether an employee is employed is one of “mutuality of obligation” in that the employer has a duty to provide work and the employee has to perform this work. Control is also factor. This is because the employment relationship is seen as one of ‘master and servant’ and if you work the hours you are told to work and your work is supervised then you are more likely to be an employee.

What is the difference between an employee and a worker?

Even if you are not an employee, you are likely to be a “worker” if you provide work personally. The importance of this distinction is that you would be entitled to the National Minimum Wage and other protection such as Working Time Regulations, Part-time Workers regulations and Whistleblowing legislation.

The Working Time Regulations entitle workers to paid holiday. Rolled up holiday pay is now unlawful and your contract must distinguish basic salary from your holiday pay. The statutory minimum is 28 days for a full time worker. If this has not been paid we can claim back up to one year‘s holiday pay.

Are your post-termination restrictions enforceable?

Other important contractual issues for employees include employers imposing post termination restrictions in their contracts of employment. If these are too onerous and prevent you and other employees from working elsewhere, they will not be enforceable. You may wish to seek legal advice about whether they are fair to see if these can be removed or modified, prior to starting work with a new employer.

How we can help

Our Employment contract solicitors are hugely experienced in providing specialist Employment Law contract advice for employees. It is prudent to seek advice before signing a new contract of employment to check that you are not entering into an unfair contract. You may be concerned about bringing a claim against your employer because you don’t have a contract of employment. This will not be a barrier and in fact if you are successful in winning your case at an Employment Tribunal you will receive addition compensation because your employer has failed to provide you with a written contract of employment or statement of terms.

Contract advice is usually straightforward so we can provide a quote for all agreed work either on a fixed fee bases or at our individual charging rate. These vary depending on the experience of each lawyer.

For more information or advice, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.