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Should you get minimum wage, holiday and sick pay? 👍

Everyone who works in the UK has work rights. 

But if you don’t know what you’re supposed to get, you probably won’t get it.

For example, about half a million people don’t get their holiday pay because they don’t know they’re entitled to it. If you make £207 a week, you’d be missing out on more than £1,200 worth of paid holiday days every year. 🏖️

So how do you find out if you’re one of them?

This article will guide you through a process to help you check your work rights.

It explains:

  • the law puts people into different categories with different rights. So to work out whether you’re supposed to get minimum wage, holiday pay, and sick pay, you have to work out which category  you’re in
  • that the organisation you work for doesn’t have the final say on what category you’re in and what rights you have
  • that actually depends on how you work
  • how to work out which employment status category you fall into
  • how to work out whether you have the right to holiday pay, sick pay, maternity/paternity leave, and other rights
  • what to do if you think the organisation you work for has got it wrong.

As with everything on this site, this article isn’t legal advice, it’s a rough and ready guide.

 

1) Everyone who works has an employment status: employee, worker, or self-employed

The law divides everyone who works into three categories: employee, worker, or self-employed.

These are legal categories and pretty much every single person who works in the UK will be in one of them. 

So to make sure you’re not being scammed out of your rights, first you have to work out whether you are an employee, worker, or self-employed in law.

As far as work rights are concerned, categories like temp, freelancer, contractor, or part-time worker don’t have their own particular legal status. They fall into one of the three main categories. 

2) The organisation you work for doesn’t get to decide which category you fall into

If there’s one thing I wish everyone knew about work rights, it’s this:

The organisation you work for doesn’t get to decide which category you fall into

Of course, the organisation where you work will decide which category you’re in to begin with, but they don’t get the final say. 

They might be wrong about which category you fall into and about the rights you have.

For example, just because you’ve signed a contract saying you’re self-employed does not mean you’re self-employed: how you work in reality is more important than what it says in your contract.

Think of it a bit like the right to vote. If you started working for a company and they told you you no longer had the right to vote, they would be wrong: that’s just not how it works. In a similar way, a company can tell you you’re self-employed, but that doesn’t mean you are: that’s just not how the law works.

 

And while most organisations try to get it right most of the time, sometimes they get it wrong.

For example, Pimlico Plumbers told its plumbers that they were independent contractors. That meant that the company did not have to pay them holiday pay. However the Court of Appeal ruled that their plumbers were actually workers entitled to holiday pay.

Autoclenz, a car valet company, required its car valeters to sign contracts to say they were self-employed, but the Supreme Court held that they were actually workers so they were also entitled to holiday pay.

Similar things have happened to couriers who worked for Addison Lee, CitySprint and workers at other companies.

So to check whether you are entitled to minimum wage, holiday pay, sick pay and so on, rule number one is:

Don’t assume your company has put you in the right category. Check which work category you fall into yourself. 

3) How to work out which category you fall into

Unfortunately, the law is rather complicated. 😔

But here’s a rule of thumb. 

If you do work for lots of different clients and you control how you work and when you work, you are probably self-employed.

If you are a temp or on a contract such as a zero-hours contract, you are probably a worker. 

If your contract has no end date, you are probably an employee.

The best way to explore which category you fall into is by taking legal advice, but it can be expensive. Otherwise you can:

  • Call ACAS, describe your working arrangements, and ask them about your employment status. They are on 0300 123 1100 (they are open Monday to Friday, 8am to 6pm).
  • Use the government’s website. Start here.

When you have a better idea which category you fall into, you can work out your rights.

4) How to check whether you should get holiday pay, sick pay, maternity/paternity leave, and other rights

Now that you have a better idea of your employment status you can work out which rights you have.

Here are the most important rights. 

This is just a rough guide, because some of the rights aren’t clear cut. For example, some workers can get sick pay. We’ve tried to make sure that each circle only shows the rights you can definitely get.

5) Your work rights if you are self-employed

If you are self-employed, some health and safety protections apply.

If you don’t get anyone else to do the work, and you don’t employ your own staff to do it, anti-discrimination rights might also apply.

6) Your rights if you are a worker

If you’re a worker, you have the rights to:

  • Be paid the national minimum wage. To find out what it is for your age and status, start here.
  • 5.6 weeks’ paid time off, or the equivalent for part-time workers. To work out how much holiday pay you should get as a temp, have a look at our article here
  • Protection from unlawful deductions from your pay. In other words, the right to be paid the correct amount of money.
  • The right not to work more than 48 hours on average per week, unless you opt out. Be careful with scams on this one; our article on it comes out 12th February 2018.
  • The right not to be treated worse just because you work part-time
  • Be accompanied at disciplinary and grievance hearings
  • The right not to be punished for exposing wrongdoing in certain circumstances (whistleblowing protections)
  • The right to claim breach of contract (wrongful dismissal);
  • Anti-discrimination rights
  • The right to health and safety protections.

Some workers also have the right to:

  • Statutory sick pay (temps have this in certain circumstances)
  • Maternity, paternity, and adoption pay
  • Shared Parental Pay

7) Your rights as an employee

If you are an employee, you have all the rights that workers have (see above).

You also have the rights to:

  • Sick Pay
  • Written terms and conditions of employment
  • An itemised pay statement
  • Ask for flexible working
  • Time off if someone you care for has an emergency (unpaid)
  • Maternity, paternity and adoption leave
  • Protection against unfair dismissal
  • The right to minimum notice if your employment is going to be ended
  • Redundancy pay
  • The right in certain circumstances to keep the same rights if another business buys the business where you work (transfer of employment rights).

8) What to do if you think the organisation you work for has got your employment status wrong

In recent years, a number of employees and workers have been told they were self-employed, and even signed contracts saying they were self-employed, when they were not. 

At Howbox, we think sorting this out should be easy, but unfortunately at the moment the system is rather complicated.

The best thing to do to start with is to call ACAS (0300 123 1100 – Monday to Friday, 8am to 6pm) with your contract, and they can advise on your situation. 

If you think you are in the wrong category and are not getting the rights you should, you have to take them to a tribunal, which is a legal process.

The best next step is to take legal advice. If you can’t afford to speak to a legal firm, you might be able to go via a Law Centre. To find one near you, enter your postcode at the Law Centre Network site

If you have been categorised wrongly as self-employed it is also important to take advice about how much tax you should be paying.

If you’re missing out on holiday pay and the organisation you work for agrees you are a ‘worker’ in law, have a look at steps 7 to 11 on our article about holiday pay here.

9) Option #1: Set up an online petition on Organise

If you work somewhere that is sensitive about its reputation, set up a petition online on The Organise Platform then spread the word to your colleagues and on social media.

If you do, it’s a good idea to contact some journalists who might write about it.

If you’re a journalist interested in writing up these stories and you’d like your name to appear in this article, email us at contactus@how-box.com. You can also introduce yourself in the discussion in the ‘Ask’ section, here, of course.

10) Option #2: Join a union

Really though, if you have been categorised wrongly, the only way to deal with it at the moment is via a tribunal.

For that, the first step – and an important one – is to talk to others in the same position and decide to take the issue seriously enough to take action.

On our ‘Ask’ forum, Mags Dewhurst from the IWGB has written about taking CitySprint to court and winning minimum wage and holiday pay. She writes: 

“I was working as a courier for CitySprint. They said we were self-employed and we didn’t have the right to minimum wage of holiday pay.

With my union, the IWGB, we took them to a tribunal.

We also brought cases against Excel, Addison Lee, and eCourier as well. They were saying we were self-employed and weren’t entitled to any of these rights.

They were just wrong to say we were independent contractors. In law we are ‘integrated into the organisation’, so we’re classified as ‘workers’ – so we’re entitled to the national minimum wage, paid annual leave, protection from discrimination.

We won it in the beginning of January 2017.”

You can read her whole answer here.

Once you’ve decided to take your rights seriously, it’s a good idea to talk to a union. To find which one is best for you, start here

Mags’ union, the IWGB – a union for independent workers – has a good track record of winning cases for workers who were wrongly told they were self-employed, who should have been paid minimum wage and holiday pay. They have won cases against taxi company Addison Lee and courier company CitySprint, for example. To find out if joining is right for you, start here.

She’s also written about she and other couriers got organised to win a 20% payrise even though they were told they were self-employed here, and more about unionising here.

11) Making the system easier

At Howbox, we want to help people solve their problems, but also to make it easier to improve the system for everyone.

We think the system of challenging your employment status should be made easier.

If you agree, you can contact the man responsible for suggesting changes to how employment law is enforced, Sir David Metcalf, via his Twitter feed @UKDirectorLME.

 

 

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Has this information helped you? Is there anything wrong with this? Let us know! contactus@how-box.com.

Do you get the rights you should? Have you disagreed with your company about which category you should be? What happened? Do you work for any of the companies mentioned? Join the discussion in the ‘Ask’ section, here.

If you’re a temp or on an agency contract, please do our survey. It takes about two minutes and it’ll help us make Howbox better.

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