A brief guide to your employment rights

Our team of Employment Law specialists is one of the leading teams in Scotland with the knowledge and capacity to cover all work-related issues. We'll help you understand the options you have and the choices you can make. With insight and guidance you may be able to challenge the position you find yourself in or you may be able to negotiate a better package – coming to us you’ll find an expert, and an understanding and proactive ally.

With more accredited employment law specialists than any other team in Scotland, we act for employees at all levels, including senior executives, and are known for the depth of our expertise and our responsiveness. We understand the emotional upset these issues can cause and are sympathetic to that as we work to get you the best possible result.

Although every situation is unique, we’ve represented thousands of employees over the years and in any given case the issues we need to address will be ones we're very familiar with and experienced at handling through to a positive outcome.

We understand the importance of providing fee clarity and value for money. We can meet with you and provide you with an assessment of your situation, including our view on your options and a recommendation, for a fixed fee.

Contact us at employment@mfmac.com for further details and an obligation quote. We have put this guide together to provide you with some key information relating to your employment law rights.

Contract of Employment

An employer is under a legal obligation to provide you with written particulars of terms and conditions of employment. This must be done on or before your start date. This is usually done by providing you with a contract of employment.

When considering whether to enter into a new contract of employment, key points to consider, other than salary and benefits, include:

• how much notice does your employer have to give you to terminate?
• are there any covenants restricting what you can do when you leave?
• how much sick pay are you entitled to?
• how many holidays are you entitled to?

If no contract of employment is issued it is possible for an employee to make an application to an Employment Tribunal who can then determine what the terms and conditions are. It is also possible for compensation to be awarded if a contract of employment has not been provided, in certain circumstances. Since 1 April 2020 workers have also been entitled to receive a written statement of particulars of employment and have the same right to make an application to an Employment Tribunal as employees if that is not done.

Notice of Termination

When terminating your contract of employment, your employer needs to give you the greater of (1) the notice period set out in the contract of employment or (2) statutory minimum notice.

The statutory minimum periods of notice are:

You should give the notice period set out in your contract of employment and, if the contract is silent on this or where no written contract exists, you should give no less than one week's notice.

As you can see below, if you have over two years' service you have the right to raise a claim for unfair dismissal irrespective of whether you have been given the correct period of notice or not.

Unfair Dismissal

If you have over two years' service you have the right to raise a claim for unfair dismissal.

In calculating whether you have two years' service, a period of one week is added on (i.e. the equivalent of the statutory minimum notice period - see page 4 above). This means that if you have 103 weeks' service or more you can raise an unfair dismissal claim.

There are a number of exceptions to this qualifying service requirement (see "If you have less than two years service" below) so it is always worth seeking initial advice on whether you may have a claim.

Raising a claim

If you wish to raise a claim for unfair dismissal then you must first attempt ACAS early conciliation within three months of your employment terminating. If early conciliation is unsuccessful or either you or your employer do not wish to proceed with it then an Early Conciliation certificate will be issued. You can then proceed to make a claim to the Employment Tribunal. The time limit for making a claim will be extended to take account of the early conciliation process. The requirement to trigger early conciliation applies for the vast majority of claims that can be made to a Tribunal. The time limits are short and are not straightforward and we recommend that advice is sought.

It may also be possible for you to raise a claim for constructive dismissal. This occurs where your employer has materially breached your contract of employment in such a way that you are entitled to resign and treat yourself as having been dismissed. Such a breach could, for example, include a failure to pay your wages or a breach of the implied term of trust and confidence that exists in all contracts of employment.

Compensation

The maximum unfair dismissal award is £136,115 (a basic award of £21,000 and a compensatory award of £115,115).

The cap on the compensatory award is the lower of £115,115 or 52 weeks' gross pay. A weeks' gross pay for the purposes of the statutory cap includes employer pension contributions but excludes benefits-in-kind and discretionary bonuses. Dismissals for whistle blowing or related to certain health and safety reasons remain uncapped, as do dismissals relating to unlawful discrimination.

The median unfair dismissal award in 2022/23 was £6,201.

The amount a Tribunal will award for unfair dismissal will depend almost entirely on your salary and benefits at the date you were dismissed and how quickly you are able to obtain alternative comparable employment. This is because a Tribunal will compensate you for your loss rather than making any punitive award against your employer.

In certain specific circumstances, there is no limit on the amount that a Tribunal can award.

These circumstances include dismissal for health and safety reasons or dismissal following the making of a protected disclosure (whistleblowing). In addition, there is no limit on the amount that can be awarded where the dismissal is related to unlawful discrimination (i.e. discrimination on the grounds of sex, race, disability, age, marriage and civil partnership, sexual orientation, gender reassignment, pregnancy and maternity and religion or belief).

For more detailed information on compensation please see employment tribunal awards.

In order to terminate your employment fairly the dismissal must be for one of the following reasons:

• Conduct;
• Capability (including competence to do the job and ill-health);
• Redundancy;
• Contravention of a statutory enactment; and
• Some other substantial reason

Your employer must also follow a fair procedure. If you believe you are at risk of being unfairly dismissed you should take advice sooner rather than later.

If you have less than two year's service 

You will usually require two years’ service before you can raise an unfair dismissal claim. There are though a number of exceptions to this requirement. These exceptions include (but are not limited to):

• Dismissals connected with pregnancy, childbirth, statutory maternity, paternity, adoption or parental or dependent care and leave;
• Dismissal for health and safety reasons;
• Dismissal for a reason connected with rights under the Working Time Regulations 1998;
• Dismissal for a reason related to the national minimum wage;
• Dismissal for making a protected disclosure (whistleblowing); and
• Dismissal for asserting certain statutory rights.

In addition, you also have protection from discrimination and you have the ability to claim for breach of contract against your employer even before your employment begins.

For more information on this please see dismissing employees with less than two years service.

ACAS Code of Practice on disciplinary and grievance

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides a guide for “expected” practice which employers should follow. If your employer does not follow this code it can be referred to in subsequent Tribunal proceedings and the Tribunal has the power to award an increase of up to 25% on any compensatory award where the employer has unreasonably failed to follow the ACAS Code.

The Code can be found and downloaded from the ACAS website: www.acas.org.uk

Discrimination 

It is unlawful for your employer to discriminate against you on the basis of:-

• age;
• sex;
• race;
• disability;
• sexual orientation;
• religion or belief;
• marriage and civil partnership;
• gender reassignment; or
• pregnancy and maternity.

In addition, under the Equality Act 2010, it is unlawful to offer different and less favourable pay and conditions where women and men are doing equal work (i.e. the same work or work of equal value). It is also unlawful to discriminate against you on the basis that you work part-time or on the basis that you have a fixed-term contract.

Discrimination claims can be made against your employer before, during and after your employment with them. If you believe you are being discriminated against you should take advice as soon as possible as the time limit for making a claim runs from the date of the act of discrimination and not from the date of termination of your employment.

Settlement Agreements

The more senior an employee, the more common it is for an employer not to follow any sort of formal procedure at all - see Senior executive severance arrangements. However, employees at any level can be asked by their employer to sign a settlement agreement. The effect of the settlement agreement is that you are signing away your right to make a claim against your employer following the termination of your employment in return, usually, for a financial payment. Agreed references and departure statements are also commonly included. In some cases these agreements are used when employment continues but your terms and conditions of employment are being amended. Your employer will require you to take independent legal advice on the terms of the settlement agreement, and usually they pay or contribute to your legal fees.

It is more common than you think to be offered a settlement agreement or find yourself in a situation where you require to negotiate a departure from your work in difficult circumstances. In this situation your employer may instigate "pre-termination negotiations" with a view to agreeing exit terms. Subject to complying with certain requirements, these negotiations are inadmissible in any future Employment Tribunal claim.

For more detailed information please see settlement agreements.

It is important to seek advice on the terms of the settlement you are being offered to ensure you are being adequately compensated.

Working Time 

National Minimum Wage

All workers, including employees, are covered by the national minimum wage legislation. The minimum hourly rates as of 1 April 2024 are as follows:

• National living wage rate (for workers aged 21 and over): £11.44
• National minimum wage (for those aged 18-20): £8.60
• National minimum wage (for those aged under 18, but at least of school leaving age, and apprentices aged under 19 or in the first year of their apprenticeship): £6.40.

Note the age threshold for the NLW has been lowered to apply to workers aged 21 and over, rather than those aged 23 and over.

These rates will change again in April 2025.

The National Minimum Wage is enforced by HMRC. Complaints from workers or third parties about non-payment or underpayment can be made to the Government's Pay and work rights helpline.

If you do not receive the national minimum wage you are entitled to bring a claim for unlawful deduction of wages in an Employment Tribunal within three months of the date of the last deduction. There is a two year limit to the period that can be claimed for.

You may also be able to bring a breach of contract claim in either the Employment Tribunal or the civil courts. Unlike a civil court claim, a claim for breach of contract in the Employment Tribunal can only be made once your employment has terminated. Claims brought in the civil courts can be raised in England and Wales up to six years after the breach, and, in Scotland, up to five years after the breach.

You may also bring a claim to an Employment Tribunal if your employer unfairly dismisses you or subjects you to a detriment because:

• You became or are eligible for the national minimum wage or a particular national minimum wage rate;
• You took any action to seek to ensure that you received the appropriate national minimum wage; or
• Your employer is being prosecuted for an offence under the National Minimum Wage Act 1998.

There is no qualifying period required for an unfair dismissal claim in these circumstances. Subject to the rules on ACAS early conciliation, you have 3 months to bring a claim.

Sick Pay

Employers are only required to pay statutory sick pay (SSP) if you are absent because of sickness for a continuous period of four days or more. If you are absent for less than four consecutive days then you are not entitled to SSP. You may not claim SSP for more than 28 weeks in each period of sickness absence.

Most employees qualify for SSP. However, if you are not entitled to SSP then you may be able to claim incapacity benefit instead. However, this claim is made via the Government and not via the employer. It is possible for an employer to pay you more than just SSP in the form of occupational or contractual sick pay. The specific sick pay terms will normally be set out in your contract of employment.

Health and Safety

Under the Health and Safety at Work etc Act 1974 certain obligations are placed on your employer with regard to health and safety such as the general duty on employers 'so far as is reasonably practicable' to protect the health, safety and welfare at work of all employees. In addition, employers must provide:

• safe plant and systems of work;
• safe methods for the use, handling, storage and transport of articles and substances;
• necessary information, instruction, training and supervision; • a safe and well-maintained workplace, including safe access and egress; and
• a safe working environment with adequate welfare facilities. In addition to its own employees, an employer owes statutory duties to:
• other people's employees working on the employer's premises; and
• members of the public who are affected by the activities of the employer.

Section 7 of the Health and Safety at Work etc. Act 1974 also places a duty on you to take reasonable care of your own health and safety, and that of anyone who could be adversely affected by your 'acts or omissions at work' and to co-operate with your employer in taking steps to meet legal requirements.

Pensions

The law relating to pensions changed with the implementation of “auto-enrolment”. Briefly, if you are an "eligible jobholder", your employer is obliged to automatically enrol you into a pension scheme.

Family Friendly Leave

There are certain family friendly rights to which you are entitled. Very broadly, these are as follows:

1. Maternity leave

If you are a female employee you are entitled to six months' ordinary maternity leave (OML) and six months' additional maternity leave (AML).

OML is a period of 26 weeks' leave available to you, regardless of length of service, if you give birth and comply with the notification conditions. AML follows immediately after the end of OML and lasts for a further 26 weeks, giving a total entitlement of 52 weeks' statutory maternity leave.

You will be entitled to statutory maternity pay (SMP) where you have:

26 weeks' continuous employment with your employer up to and including the 15th week before the expected week of childbirth (EWC); and
average earnings of at least the lower earnings limit for National Insurance during the eight-week period ending with the 15th week before EWC.

If you satisfy the criteria above you will receive payment in respect of the initial 39 week period of maternity leave. The first six weeks are paid at 90% of your usual rate of pay (before tax). Thereafter, for the remaining 33 weeks of the paid portion of maternity leave, only the flat rate of SMP is paid. The current SMP flat rate is £184.03 a week.

2. Shared Parental Leave

Shared parental leave (SPL) is completely separate from and does not affect the parental leave which is discussed at point 5 below.

As mother or primary adopter you are entitled to 52 weeks of maternity/adoption leave. SPL allows you to give notice to end your maternity leave early and share what would have been the remainder of the maternity/adoption leave with the child's father or your husband or civil partner or partner; or, in the case of adoption, the secondary adopter (the "other parent"). Your partner for these purposes is a person (whether of a different sex or the same sex) who lives with you and with the child in an enduring family relationship but is not the mother's child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew.

For more details see - Shared parental leave.

3. Adoption leave

Adoption leave operates in much the same way as maternity leave and in the event that the conditions are met, if you are adopting a child you will benefit from Statutory Adoption Pay. This is paid for 39 weeks.

4. Paternity leave

Paternity leave is available to employees with 26 weeks service either, for birth and surrogacy cases, ending with the week immediately prior to the 14th week before your child's expected week of childbirth ("EWC"); or, for adoption cases, ending with the week in which you, as the child's adopter, are notified you have been matched with a child. 

If your child's EWC begins after 6 April 2024, or your adopted child's placement is on or after 6 April 2024, you may choose to take a single period of leave of either one or two weeks, or two non-consecutive periods of leave of a week each. The leave must usually be taken between the date of birth of the child or the date of placement in adoption, and the 52 weeks after that date.

Paternity pay is paid at the same flat rate as SMP.

5. Parental leave

If you have completed one year's continuous employment and you "have, or expect to have responsibility, for a child" then you have a legally enforceable right to take unpaid parental leave while the child is under the age of eighteen, subject to an overall maximum of 18 weeks' leave in respect of each child (4 weeks per year in terms of the default scheme).

6. Parental bereavement leave and pay

If you are the parent of a child that is stillborn after 24 weeks, or that dies before they turn 18, you will be eligible for 2 weeks parental bereavement leave. The leave may be taken as 2 weeks together, 2 separate weeks or only 1 week of leave. The leave can start on or after the date of death or stillbirth, but must finish within 56 weeks of the date of death or stillbirth.

In order to qualify for statutory parental bereavement pay, you must have been continuously employed for at least 26 weeks up to the end of week immediately before the week of death or stillbirth. You must also continue to be employed up to the day the child dies or is stillborn, earn on average £123 a week before tax (gross) over an 8 week period and give the employer the correct notice and information for statutory parental bereavement pay.

7. Carer's leave

You are entitled to carer's leave (without pay) from day 1 of your employment.  Carer's leave is a flexible entitlement to one week's unpaid leave for you to provide or arrange care for a dependent with a long-term care need.  You may take the leave, subject to notice requirements, as half or full days up to and including a block of a whole week at once.  Your employer can postpone, but not refuse, your request for carer's leave, and any alternative dates offered by your employer must be no later than 1 month after the earliest date you included in your original request.  You are protected from detriment and dismissal because of taking or seeking to take carer's leave, or if your employer believes you are likely to do so.

8. Flexible working and domestic emergencies

 For requests for flexible working made since 6 April 2024, you do not require to have any period of qualifying service - a request can be made from day 1 of your employment.  Under the statutory procedure your employer has 2 months to deal with the request.  Your employer cannot refuse your request without first consulting you on it. You are entitled to make a maximum of 2 requests in any 12-month period. You do not require to be a parent to qualify for this right. Your employer requires to consider any such request reasonably. ACAS has published a Code of Practice for Handling Requests to Work Flexibly in a Reasonable Manner.

In addition, you have the right to time off (unpaid) to deal with certain domestic emergencies.