What is the Employment Rights Act?
The Employment Rights Act (ERA) 1996 set out the rights of employees in situations such as dismissal, unfair dismissal, parental leave, and redundancy.
The legislation amalgamates and updates much earlier labour law, including the Contracts of Employment Act 1963, the Redundancy Payments Act 1965, the Employment Protection Act 1975 and the Wages Act 1986 into one Act. It applies across the whole of the United Kingdom, including Scotland and Northern Ireland.
It was introduced by the Conservative government to consolidate existing law and to extend the personal rights of workers.
In one Act, it is much easier for both businesses and individuals to understand what rights employees have.
Employees may have been given these rights previously contractually, either within a business' employment policies or its employment contracts with employees. The Act now enshrines those rights in statutory law for all workers.
Key provisions of the original Act
Important rights given to employees or strengthened by the Employment Rights Act 1996 include:
The right to be told key employment terms
Section 1 (2) of the ERA 1996 as amended by the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 states that the main terms between the employee and employer must be recorded in writing and given to the employee before the employment begins.
The document might be an employment contract, or a shorter 'written statement of particulars'. Signing creates an enforceable contract with the employer. A statement may also describe statutory employment rights.
Disclosures and detriment
Under the Employment Rights Act 1996, workers may not disclose any company’s confidential or private information to a third party.
Sundays, time off and suspension
An employee has a right to receive paid leave for public duties and responsibilities such as jury service.
Dismissal: notice and reason
Under Section 86 of the Act, 'reasonable notice' has to be given before the termination of the contract. That applies to both the employee and the employer.
The duration of a reasonable notice period depends on the employment duration. If the employee has worked for more than one month then a minimum notice period of one week should be issued in case of dismissal. After 2 years of service, the duration of a reasonable notice period increases to two weeks. After 3 years, the duration increases by another week to 3 and so on to a maximum of twelve week’s notice. However, the employer can also issue pay in lieu of notice, if this is mentioned in the employee’s contract of employment.
Section 94 of the Employment Rights Act prevents the employer from unfairly dismissing the employee. An employer must specify the reason that resulted in the employee’s dismissal.
Dismissals related to the following are considered automatically unfair:
- health and safety concerns
- assertion of statutory rights
- request for flexible working
Valid (fair) reasons mentioned in s. 98(2) to dismiss workers are as follows:
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do
(b) relates to the conduct of the employee
(ba) is retirement of the employee
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
Additionally, the employer has the right to dismiss the employee under s98 (1) for some other substantial reason.
Claims for unfair dismissal must be made to an employment tribunal within 3 months of dismissal unless circumstances come to light to support a claim much later.
Section 135 of the Act gives workers a right to compensation if his or her job becomes obsolete (redundant) – provided he or she has worked under the employer for a specified duration to become an established employee.
To qualify for the redundancy payment, the employee must have had a working relationship with the same employer for two years (s 155). Employees who have reached retirement age are not entitled to redundancy payments (s 156).
The employer can avoid compensatory payments by dismissing him or her for a different reason, such as misconduct or capability, as mentioned above.
Redundancy payments are calculated using the length of the service and the age of the employee. If the employee is under 21 years old, half a week's pay will be given for each year. If they are between the ages of 21 and 40, one week's pay will be given for each year. If they are over 40, one and a half week’s pay will be given for each year. The upper limit of the payment is set almost equally to the National Minimum Wage.
Section 182 gives protection to the employee in the case that the employer has become bankrupt and there is no money remaining to pay him or her. If it is established that the employer has become insolvent, the Secretary of State will compensate workers from a National Insurance Fund.
Subsequent amendments to the Act
Request for flexible hours
In 1997, the Labour government proposed an amendment to the Act – strengthening the right of workers to request flexible working time – which was subsequently passed by Parliament.
Protection for whistleblowers
The Public Interest Disclosure Act 1998 (PIDA) gave whistleblowers additional protection by allowing them to claim unfair dismissal if they lost their job as a result of the disclosure. It has since been amended again so that being disadvantaged in the workplace as a result of disclosure is also a breach.
In order to be protected, the subject of the disclosure must be in the public interest being: a criminal offence, a breach of a legal obligation, an injustice, a danger to health and safety (to anyone) or damage to the environment.
Holiday pay reference periods
Some people are paid different wage rates according to the time of the year. For example, they might work fewer hours at certain times of the year depending on customer demand.
Previously, the holiday pay reference period was 12 weeks. In other words, holiday pay would be calculated based on pay for the prior twelve weeks.
This was changed in April 2020 by coming into force of the Employment Rights (Amendment) Regulations 2018 to 52 weeks so as to ensure that the calculation does not take seasonality into account.
In 2019 an amendment required itemised payslips to be provided for all workers. These must show the hours worked and the pay rate for these hours.
Increased fines for non-compliance
The Employment Rights (Miscellaneous Amendments) Regulations 2019 have quadrupled the maximum fine that may be given for a serious breach of the legislation.
Other changes include:
- parental bereavement leave for parents who suffer stillbirths or the death of an infant
- increases to the National Minimum Wage, statutory sick pay and parental pay
- the cap on compensatory awards for unfair dismissal claims