Kate has over eight years of experience as an employment and personal injury legal executive. She runs LawCat, a legal explanations website.
It can be difficult to know your employment rights when you do not have a physical paper contract to refer to. This article explains what your options are.
There may be occasions when you need to know your employment rights—for example, when there is a problem at work. You might have a problem with another staff member or policy, or the company might have an issue with you. In either situation, you will need to know your rights.
Once of the first places you should always look for your employment rights is your employment contract. However, there may be occasions when you are employed by an employer without having a written contract.
It's Okay Not to Have a Written Contract
Firstly, you and your employer are not doing anything wrong by you not having a written contract. Sometimes an employer chooses not to provide an employee with a written contract. Other times, providing the contract can be one of those jobs that gets put off and put off and put off and never actually gets finished.
Usually, you can work just fine without a written contract. But it may become a concern if you start having problems at work. It can be difficult to know what your rights are concerning pay, holiday and sick leave, grievances, and disciplinary proceedings when there is no written contract to refer to.
Start by Clarifying Your Employment Status
If you are having an issue and you need to know your rights, the first point you will need to clarify is whether you are classed as an employee, aka your employment status. Your employment status is important to understand, as your status affects your rights such as your right not to be unfairly dismissed, and the right to redundancy pay, etc.
The first thing to consider in this type of situation is that what you have been told may or may not be correct. Your employer may refer to you as ‘self-employed’ or a ‘casual worker’ or a ‘trainee’, but this does not make that status correct. Just because you have been labelled as something does not mean the label is true; your behaviour and how you work must be taken into account and will have more weight than your label/title.
Employers Sometimes Mislabel Employees
Some employers mislabel employees to avoid having to pay tax and national insurance for their employees and to try to avoid you accruing employment rights. But the title your employer gives you is irrelevant; just because you pay tax and national insurance yourself (rather than have it deducted automatically from your gross paycheque) as a ‘self-employed’ person, it does not automatically follow that you are classed as self-employed rather than an employee.
What counts is the following:
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- What you do
- How you work
- Who decides what work you do
- What you are expected to do by your employer
Again, it is important to know the distinction here as it will affect your rights.
How to Know If You’re Classified as Self-Employed
To know what you should officially be classified as, despite your label, you should ask yourself several questions about your employment.
Who Provides Your Work?
Does your employer provide you with work, or do you have to go out and find your work to do? If your employer controls the work to be done and provides the work, then this strongly indicates that you are an employee. If your employer decides what work you do and how you do it (even if you are left alone to carry out the work), then you will be classed as an employee.
How Long Have You Worked for Your Employer?
If you are an employee for two years or more, then you have employee rights even if you pay your own tax and national insurance and have no physical contract. You will have the same rights as someone who was employed with a written contract and had their tax and national insurance deducted at source.
How Are You Paid?
There are other elements of your employment that can indicate that you are an employee as opposed to self employed, such as how you are paid. If you are paid a regular amount of pay at regular intervals, such as X amount each week or month regardless of the work or jobs that you do, rather than being paid per job done, then this strongly indicates that you are an employee.
Who Provides the Tools Needed to Do Your Job?
If your employer provides/supplies all the tools/materials for you to do your job rather than have you supply them yourself, then again this indicates that you may be an employee.
Contractors vs. Employees
An easy way to identify if you are an employee is to look at the way contractors work. If you were/are an independent contractor, then you arrive on site with your own kit, do your job and go. You invoice for the job done. If you are ill or on another job you can get someone else to cover your work and you have to pay them. The employer has no right to say that you cannot do this, because a self-employed person or independent contractor has the right of substitution. If you do not work in this way then there is a strong possibility that you will be classed as an employee.
If you are an employee, then you are considered to have a contract of employment. Even if you do not have a physical contract you will still be considered to have a written contract for legal purposes and you will have all the rights and privileges of a legal employee.
Talk to Your Employer If You Have a Question or Problem
If you have questions regarding topics such as holiday time, the rate of pay, or sick leave then you can ask your employer directly, or you can request a copy of the company handbook which may clear up some of your issues. If you have an issue with how work is being carried out you have the right to raise a grievance. You are also subject to disciplinary proceedings should your behaviour warrant it, but you are protected in the sense that your employer cannot just fire you, they have to carry out a formal investigation prior to enacting any consequences.