Employment Law
Rights and obligations of employers and employees, including dismissal, discrimination, pay, and TUPE.
Cyflwyniad
Employment law governs the relationship between employers and employees in England and Wales.
In Brief
Employees have statutory rights from day one (e.g. against discrimination, for written particulars of employment) and additional rights after two years (e.g. unfair dismissal). Claims must generally be brought within three months less one day, after first going through ACAS Early Conciliation.
Egwyddorion craidd
Employment Status — Rights depend on whether an individual is an employee, a worker, or self-employed. Employees enjoy the fullest protection; workers have intermediate rights (e.g. national minimum wage, holiday pay); the self-employed have the fewest statutory protections. The label used by the parties is not determinative (Autoclenz v Belcher [2011]).
Unfair Dismissal — Employees with two years' continuous employment have the right not to be unfairly dismissed (ERA 1996 s.94). The employer must establish a potentially fair reason (capability, conduct, redundancy, statutory restriction, or some other substantial reason) and must act reasonably in treating that reason as sufficient (ERA s.98(4)).
Procedural Fairness — Even where a fair reason for dismissal exists, a failure to follow a fair procedure can render dismissal unfair. In conduct cases, following the ACAS Code of Practice is essential; tribunals can uplift awards by up to 25% for unreasonable non-compliance (Polkey v AE Dayton Services [1987]).
Constructive Dismissal — An employee can resign and claim unfair dismissal where the employer's conduct amounts to a fundamental breach of contract — typically a breach of the implied duty of mutual trust and confidence. The employee must resign promptly and not affirm the breach (Western Excavating v Sharp [1978]).
Discrimination — Direct discrimination (treating someone less favourably because of a protected characteristic), indirect discrimination (a neutral provision, criterion or practice that disproportionately disadvantages those with a protected characteristic), harassment, and victimisation are prohibited by the Equality Act 2010. Compensation is uncapped.
TUPE — The Transfer of Undertakings (Protection of Employment) Regulations 2006 protect employees whose employment transfers when a business or service provision changes hands. Employees transfer automatically on existing terms; dismissals connected to the transfer are automatically unfair unless an ETO reason applies.
Working Time and Pay — The Working Time Regulations 1998 provide a 48-hour average working week (opt-out available), minimum rest breaks, and 5.6 weeks' paid holiday. The National Minimum Wage Act 1998 and National Living Wage rates set a statutory pay floor.
Reasonable Belief Test — In conduct dismissals, the tribunal assesses whether the employer had a genuine belief in the misconduct, based on reasonable grounds, reached after as much investigation as was reasonable in all the circumstances (British Home Stores v Burchell [1978]).
Statudau allweddol
Employment Rights Act 1996
Equality Act 2010
Transfer of Undertakings (Protection of Employment) Regulations 2006
Working Time Regulations 1998
National Minimum Wage Act 1998
Achosion arweiniol
Polkey v AE Dayton Services Ltd
[1987] UKHL 8
Western Excavating (ECC) Ltd v Sharp
[1978] QB 761
British Home Stores Ltd v Burchell
[1978] IRLR 379 EAT
Uber BV v Aslam
[2021] UKSC 5
Senarios cyffredin
Unfair dismissal claim process
An employee dismissed after at least two years' service can bring an unfair dismissal claim. They must first contact ACAS to begin Early Conciliation. If conciliation fails, a claim must be lodged with the Employment Tribunal within three months less one day of the effective date of termination. The tribunal will assess whether the employer had a fair reason and acted reasonably — including whether a fair procedure (investigation, disciplinary hearing, right of appeal) was followed.
Constructive dismissal after change to terms
Where an employer unilaterally reduces an employee's pay, demotes them without cause, or conducts a sustained campaign of unreasonable management, the employee may argue this amounts to a fundamental breach of the implied term of mutual trust and confidence. The employee must resign without undue delay, making clear the breach is the reason. They then bring an unfair dismissal claim (subject to two-year qualifying period) rather than a wrongful dismissal claim.
TUPE transfer and contract variation
When a company is acquired or a service contract changes hands, the transferring employees' employment passes automatically to the new employer on the same terms. The new employer cannot harmonise (worsen) terms and conditions in connection with the transfer. Any dismissal connected to the transfer is automatically unfair unless there is a genuine economic, technical, or organisational reason entailing changes in the workforce.
Discrimination at work
An employee who believes they have been treated less favourably because of a protected characteristic (e.g. race, sex, disability) can bring a discrimination claim in the Employment Tribunal with no qualifying period. The burden initially lies on the claimant to establish facts from which discrimination could be inferred; it then shifts to the employer to show a non-discriminatory explanation. There is no cap on compensation for discrimination claims.
Related Careers
Frequently Asked Questions
Can I be fired without a warning?
For gross misconduct (e.g. theft, violence, serious dishonesty), dismissal at first offence can be fair — but only after a reasonable investigation and a disciplinary hearing. For ordinary misconduct or poor performance, a fair procedure typically requires warnings, time to improve, and an opportunity to appeal. Summary dismissal without any process is high-risk and likely to be unfair.
How long do I have to bring an Employment Tribunal claim?
The primary limitation period is three months less one day from the date the act complained of took place (e.g. the effective date of termination for unfair dismissal). Crucially, you must first notify ACAS to begin Early Conciliation before lodging a claim; the limitation period is 'stopped' during conciliation. Missing the deadline is fatal to most claims — extensions are granted only where it was 'not reasonably practicable' to claim in time.
What is constructive dismissal?
Constructive dismissal occurs when an employee resigns in response to the employer's fundamental breach of contract. The most commonly invoked implied term is the duty of mutual trust and confidence. The employee must act promptly on the breach and not 'affirm' the contract by continuing to work for a significant period without protest. The qualifying period of two years' employment still applies.
Am I an employee or a worker?
The distinction turns on the factual reality of the relationship. An employee has a contract of service — they are integrated into the business, subject to control, obliged to work personally, and the employer is obliged to provide work. A worker has a looser contract: they work personally but the business is not their client. The Supreme Court in Uber v Aslam [2021] held that Uber drivers were workers, entitling them to minimum wage and holiday pay, despite contractual documentation suggesting self-employment.
What happens if my employer becomes insolvent?
If your employer is insolvent, you become a preferential creditor for up to eight weeks of unpaid wages (capped at the weekly pay cap), accrued holiday pay, and statutory notice pay. You can also apply to the National Insurance Fund (via the Insolvency Service) for these payments and a basic award for unfair dismissal if applicable. Statutory redundancy pay can also be claimed from the Fund.
Important Deadlines