Legal FAQ

Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, where an employee has been employed under a series of successive fixed-term contracts lasting for four years or more, she or he will be treated as employed on a permanent basis when a new contract is accepted unless the employer can justify the continuation of fixed-term contracts.

There is no set period after which a freelancer loses freelance status.

The test is always whether the freelancer is as an "employee" or not, and that depends on the extent of control exercised by the employer over the freelancer's activities and whether the freelancer can be required to undertake further work when offered.

Unfortunately there is no legal requirement on your employer to give you your redundancy cheque on the day the cinema closes and frequently employees do have to wait until their normal pay day before they receive their redundancy money.

If you do not receive your redundancy payment on your normal pay day you can submit a claim to the Employment Tribunal.

You must lodge the claim with the Employment Tribunal within six months of your last day working at the cinema.

If you do not, you may lose your right to the redundancy payment.

Employer's Liability Compulsory Insurance (ELCI) is extremely wide and whether it is payable after an accident or diagnosis of industrial disease is judged on a case by case basis, according to whichever workplace health and safety regulations apply.

And while not all the regulations apply to self-employed people, the key as to whether a freelance is covered is who is in control of the work equipment they use and the manner in which they use it and do their work.

The Provision and Use of Work Equipment Regulations (PUWER) 1998 cover self-employed people. If they are breached by an employer and that breach causes injury to a self-employed person who is working for them then ELCI would apply.

The Workplace Regulations 1992 also apply to visiting workers.

However, if a self-employed person being paid to do a job using their own equipment and controlling the job themselves chooses to lift a heavy object and is injured as a result it is unlikely that they will be covered by the Manual Handling Regulations.

As said though, what undercuts all of this is who is in control. So a freelancer using the employers' equipment and working to the employer's instructions is classed in common law as in effect an employee and is therefore covered by ELCI.

A "fixed-term contract" is a contract which terminates:

1. at the end of a specific period;
2. on the completion of a particular task; or
3. on the occurrence of a specific event

A contract to work for the length of the theatre season is likely to count as "fixed-term contract" for the purpose of the fixed-term worker regulations, meaning that such a worker would probably be protected.

That worker would be entitled to be treated no less favourably on grounds of fixed-term status than a comparable worker employed on an open-ended basis, unless the employer could justify objectively any difference in treatment.

Importantly, once an employee has completed four successive fixed-term contracts, they are to be treated as employed on an open-ended basis unless the employer can justify objectively the continuation of fixed-term status.

The smoking ban applies to theatres as it does to all enclosed and substantially enclosed public places and places of work.

However, Section 3 of the Health Act deals with exemptions, and says that regulations may be made providing for specified descriptions of premises, or specified areas, not to be smoke-free. The smoke-free (exemptions and vehicles) regulations came into force on 1 July.

Regulation 6 says:

Where the artistic integrity of a performance makes it appropriate for a person taking part in a performance to smoke, the part of the premises in which that person performs is not smoke-free in relation to that person during his performance.

Section 3(8) of the Health Act defines "performance" as including "the performance of a play, or a performance given in connection with the making of a film or television programme". It goes on to say, "if the regulations so provide, including a rehearsal". However, the regulations do not mention rehearsals so they are not, currently, exempted.

Other exemptions under the regulations are: residential accommodation, hotels, boarding houses etc, in specified rooms, designated rooms in care homes,  hostels and prisons, specialist tobacconists, smoking rooms in research facilities where tobacco or smoking products are tested and designated rooms in mental health units.

All workers have had a right to a certain amount of paid holiday since 1998. In 2001, BECTU won a key judgement at the European Court of Justice to establish that this right also applies to freelance workers from day one of every contract, regardless of its length.

For a leave year starting on or after 1 October, 2007, minimum holiday entitlement will be increased from four weeks per annum, to four weeks plus four days per annum. If your leave begins before 1 October, you get a pro rata increase for your current leave year.

How to calculate your holiday entitlement from October 2007, daily contracts and five-day weeks: if you are on a daily contract, or a weekly contract based on five-day weeks, your holiday entitlement is 24 days per annum, pro rata for contracts shorter than a year. Therefore on a six-month (26-week) contract your holiday entitlement is 12 days and on a three-month (13-week) contract it is six days.

The days you take as paid holiday must be days on which you would otherwise have worked. Unpaid weekly rest days (typically Saturday or Sunday) do not count as paid holiday. If you are unable to take paid holiday during the contract, then you must receive an appropriate compensatory payment at the end of the contract.

This is commonly called "holiday pay". Holiday pay on a daily contract or five-day week is equivalent to 10.2 per cent of your basic rate.

Six-day weeks: if you are on a weekly contract based on six-day weeks, your holiday entitlement is 28 days per annum, pro rata for contracts shorter than a year.

Therefore on a six-month (26-week) contract your holiday entitlement is 14 days and on a three-month (13-week) contract it is seven days.

Other arrangements are the same as for daily contracts and five-day weeks, except that holiday pay on a six-day week is equivalent to 9.9 per cent of your basic rate.

Death benefits under a pension scheme are usually distributed at the discretion of the pension fund trustees. You should therefore let them know of your wishes.

Often, they will require you to complete a nomination form indicating whom you would like to benefit, we would advise you to review your nominations annually.

Life assurance policies, if written in trust, are payable to the named person(s), whatever your Will may say, we would advise you to check these annually.

Assets in joint names may pass to the survivor. If you wish to leave your share of jointly-owned assets to someone other than your co-owner, you may need to take steps to divide the ownership of those assets.

If, for example, the jointly-owned asset is your home you should have the wording of the title deeds checked.

If the property concerned is a joint bank or building society account you could perhaps transfer your share to a new account in your sole name so that you can leave that money to someone other than your co-owner.

There are strict time limits for pursuing both personal injury and employment rights cases.

In personal injury cases your claim must be lodged within three years of the date of the accident or knowledge of work-related disease.

The earlier the claim is able to be commenced by your solicitor the better as evidence, including medical and witness evidence, can go very cold very quickly. The stronger and fresher the evidence, the more likely the claim is to succeed. If in doubt ring BECTU's 24-hour legal helpline on 0800 587 1278 for advice.

In employment rights cases, such as unfair dismissal and discrimination, the claim must be lodged with an employment tribunal within three months of the event that led to the claim.

Discrimination cases can be regarded as continuing over a long period where the discrimination continues. If in doubt, contact your BECTU Rep.

Grievance procedures exist to enable employees to raise any concerns with management. It is, however, best to try to resolve the grievance informally, with the help of your BECTU Rep, before invoking the formal procedure.

The formal grievance procedure has three steps:

1. The employee gives a written statement of the basis of their grievance to their employer.
2. The employer responds within 28 days by inviting the employee to a meeting. The meeting takes place and the employer informs the employee of their decision and of the employee's right to appeal if they do not agree with the decision.
3. The employee appeals and the employer informs them of their final decision. If you submitted a written statement setting out the basis of your grievance and did not get a response from your manager, then they are probably in breach of the procedure. It may be possible then to raise the grievance at the next stage.

Discuss this with your BECTU Rep before taking any further action.

It is almost impossible to give advice on your concerns without close examination of the facts of the methods used by the assessment centre and the way in which the results were analysed and used by your employer. Your first course of action should be to raise the matter with your BECTU Rep to assist with internal procedures including a grievance.

If it is clear that legal assistance is required for a possible legal claim, your Rep will ensure the formal application for assistance is made within six weeks of the decision to be challenged.

Parental leave is the right to take time off work to look after a child or make arrangements for the child's welfare.

Your employer should have a written parental leave policy and you should check with your BECTU Rep what the policy states and the arrangements for requesting to take the leave.

Parents can take up to 13 weeks parental leave up to a child's fifth birthday, or 18 weeks up to their 18th birthday if the child is disabled. In adoption cases it is five years after the child is placed with the family, or until their 18th birthday if that comes sooner.

Parental leave is unpaid and must usually be taken in short or long blocks, usually one week up to a maximum of four a year, according to the employer's policy.

Arrangements for requesting to take parental leave will also depend on the employer's policy but it is usual that 21 days' notice be given by the employee.

The employer can refuse requests if it can show that taking the leave at that time would be harmful to the business. In those circumstances the employer can postpone the leave, for no longer than six months, and should put their decision and reasons in writing.

Agency workers do not have the same rights as permanent employees, and that's bad not just for them but for all workers. Agency workers are usually paid less than employees and are therefore used as a source of cheap labour.

Agency workers have no job security, get fewer holidays and are not entitled to sick pay or to join company pension schemes. Even if they work at the same department or company for over a year they do not get the same employment rights, such as the right not to be unfairly dismissed, as employees.

The government promised the unions legislation on this when it made the Warwick agreement, before the last General Election. However, it has only just put forward proposals for legislation, and these do not go far enough towards achieving equality for agency workers.

A private members' bill put forward by the Labour MP Paul Farrelly with the support of the trade unions would have given agency workers equal rights. However, it was "talked out of time" in the House of Commons and so cannot become law.

Agency workers do however have the right to join a trade union and BECTU members should aim to recruit them in order that they have a voice at work. But recruiting agency workers can be a real problem for unions as the temporary nature of their work means they are often reluctant to commit.

Most motor insurance providers add Legal Expenses Insurance (LEI), which is designed to cover you should you need to pursue a claim for compensation if you are injured in an accident caused by someone's else's negligence.

But what they may not tell you is that this is rarely free and that you do not, as a trade union member, need it.

LEI costs on average £20, though you may find it difficult to find anything on your policy documents that tells you this. As a BECTU member you are entitled to free legal representation should you be injured at or away from work, including in road traffic accidents, at no cost to you whether or not your compensation claim is successful. So it is unlikely that you need the legal cover and you can legitimately ask for it to be removed.

You may find other policies, such as household contents insurance, have similar LEI add-ons, so check that you haven't paid several times over for cover you may not need.

Employees with children under six or disabled children under 18 have the right to ask their employer to consider a request for flexible working. From 6 April 2007, the Work and Families Act also introduces a new right for carers of adults to request to work flexibly.

Flexible working can include part-time work, flexi-time, varying the hours you start and finish work, your patterns and place of work and job sharing. You should first get advice from your BECTU Rep, as your contract of employment or locally negotiated agreement may provide for different arrangements from those in law.

Statutory duty

Your employer has a statutory duty to give serious consideration to any request to work flexibly and can only refuse it if there are clear and permissible business grounds for doing so. However, the remedies available if they refuse your request are limited.

Any request to work flexibly must be put in writing, stating that it is being made under the statutory right to apply for flexible working. You must confirm your relationship to the child and set out your proposed change to your working pattern. Also, you must have served 26 weeks continuous service.

Importantly, you must explain what effect you think this change will have on your employer (ie would they have to find other staff to cover for you) and how you think they might deal with this. You must also state if you have made a previous application and, if so, when.

Your employer must either respond with an agreement within 28 days of receiving your application or must request a meeting with you to discuss it.

They must then notify you in writing within 14 days of the meeting of their decision. This will either be acceptance of the request, agreement to any alternative arrangement that will have been discussed with you at the meeting, or a refusal.

If the employer refuses your request they must set out the clear business reasons as to why, and they must inform you of the appeals process.

Appeals process

If you decide to appeal, you must inform your employer and they must hear your appeal within 14 days. They must then write to you either upholding the appeal, specifying any agreed variation to your request, or dismissing the appeal and stating the grounds for doing so.

If your appeal is turned down, you must seek legal advice through BECTU as soon as possible as you have just three months from the date of notification of rejection to apply to take your case to an employment tribunal.

It may also be possible to pursue a sex discrimination claim, but again, legal advice through your BECTU Rep should be sought first.

There is no explicit requirement under the Employment Equality (Religion or Belief) Regulations to provide facilities, such as a prayer room, for workers who want to practise their religion.

However, if employees ask for a quiet place in which to pray and the premises can accommodate the request without adversely impacting on the business or other staff, then it is hard to see how a refusal could be justified.

There may also be issues about the time that workers take in order to practise their religion. However, if time off to practice the religion is restricted to the normal tea, coffee and other breaks taken by others, then the workers are not being treated any more favourably than anyone else in the workplace.

Discuss the problem with your BECTU Rep. It should be possible to resolve the issue through discussion with your boss and allaying any concerns they have about your request. If, however, they continue to refuse, then you can consider taking a grievance through the formal grievance procedures.

BECTU is continually receiving phone calls from freelance members who have agreed verbally to work for a company but who are then not issued a contract and end up having to go down the legal route to prove the contract existed and fighting over money owed.

Even though a verbal contract is legally binding, BECTU strongly advises freelances to send out a 'confirmation of booking' letter where you know or suspect an employer will not provide you with a written contract.

It may also be a good idea to send it even if they are going to send you a written contract, because it summarises your understanding of the terms and conditions of the job that you are to undertake.

In the event of a dispute later on, a confirmation of booking letter will be a useful point of reference: for instance, where the employer tries to reduce your agreed rate of pay by claiming that it "includes holiday pay".

An example letter can be downloaded in the following file formats:

• Microsoft Word [67k]
• OpenDocument Text [15k]

The italics text indicates where you need to add or amend the wording, depending on your role.

Self-employed women are not entitled to maternity pay from an employer unless their contract of employment recognises them as 'employees' as opposed to 'workers'. However, they will be able to claim Maternity Allowance, which is paid by the State.

This does not mean that self-employed pregnant women have no maternity rights. Whoever they are working for during their pregnancy must carry out health and safety risk assessments to identify any risks in the workplace to the pregnant woman and her unborn child.

A self-employed pregnant woman also has the right to claim sex discrimination if she suffers detrimental treatment as a result of her pregnancy.

If, for example, her contract was not renewed after she informed her employer that she was pregnant, she might be able to pursue a sex discrimination claim if she could prove this was a direct result of her pregnancy.

Liability for selling a cinema ticket to an underage person lies firmly with the employer. If you are concerned that you will be held liable, or you are threatened with disciplinary action for selling a ticket to an underage person, consult your union Rep.

The aim of the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE, is to protect the rights of employees when their employer changes as a result of a transfer of undertaking.

This is most common in the public sector where a service has been privatised and a new employer wins the contract.

The TUPE regulations implement the 1977 European Union Acquired Rights Directive. According to that directive, the legislation an individual State brings in to implement it must be interpreted with the overriding purpose of safeguarding workers' rights.

As well as protecting employees' terms and conditions, the regulations are also meant to ensure proper information and consultation when the employer's identity changes.

However, the courts in Europe and the UK have often given inconsistent rulings, particularly on when TUPE and the Directive apply. This has led to increased litigation and uncertainty for unions and their members.

Employers have also consistently sought to undermine the TUPE protections by attempting to reduce terms and conditions on transfer.

Any union member wanting to know if TUPE applies to their situation, and how it might help them if it does, should therefore seek advice from their official.

No. The exemptions to the Employment Equality (Age) regulations are that it is legal to refuse to recruit people who are over the normal retirement age operated by the employer, or over 65 if there is no normal retirement age.

It is also legal to only recruit certain age groups where there is a genuine occupational requirement for employing people of a particular age.

A compromise agreement is an agreement to confirm the terms between an employer and an employee or recent ex-employee to prevent a claim proceeding to an employment tribunal hearing.

The main purpose of the agreement from the employer's point of view is to prevent an employee taking the employment dispute to court or to an employment tribunal once the agreement has been signed.

In terms of your notice payment, you should be entitled to the 12 weeks' contractual pay at full pay if your contract states that you are entitled to 12 weeks pay in lieu of notice.

In order to comply with the relevant law the employee has to have independent legal advice regarding the details of their compromise agreement. If you have any other specific concerns about your compromise agreement make sure that you raise these with your union Representative.

Unfortunately, as the permanent ill-health insurance was a discretionary benefit and did not actually form part of your contractual terms and conditions of employment, strictly speaking there is no breach of contract if the employer withdraws the benefit. If it had been incorporated into the terms and conditions of your contract it would have been known as an 'express' term.

An employment contract will generally deal with specific working arrangements such as pay, hours, holidays, place of work, provision for sick pay, pension and other benefits. Clearly the purpose of expressly dealing with these issues is for the avoidance of doubt and so that both parties understand the terms on which the employee is employed.

Seek advice from your BECTU Rep about the possibility of arguing that the permanent ill-health insurance is an 'implied' term of the contract and that it is custom and practice for all employees to receive this benefit. On the face of it, however, this is unlikely to be successful. If your employer is cost-cutting, non-contractual benefits are an easy target.

This depends on your employer's policies.

There should be a procedure for agreeing job descriptions, which should involve the job holder producing a draft to be discussed and agreed with the relevant line manager.

There should also be a job evaluation procedure, under which employees can apply for a review if they think their job has changed, or that their roles and responsibilities do not reflect their job title or description.

Whether it matters really depends on whether the job description and the roles defined in it impact on the member's grade and pay.

If a member goes through the evaluation procedures, including the appeal system which should exist, and is still unhappy, they should consult their BECTU Rep.

The Employment Equality (Age) Regulations came into force on 1 October and create a new right for employees who are approaching normal retirement age to request that their employer allow them to continue working beyond the normal retirement age.

However, the right is only one of request and the employer is under no obligation to grant the request, or even to provide reasons why it has been refused, although they must seriously consider the request. The right is also only available to employees, not the broader categories of workers.

There is a process that must be followed by both the employee in making this request and by the employer responding to it. This starts from the obligation on the employer to notify the employee of their intended date of retirement and the employee's right to request, in writing, to continue working beyond that date.

If your employer refuses your request, you can appeal. But unless your employer has failed to follow the correct procedures, there is probably little you can do.

Because the process that must be followed is fairly complex, it is important that you consult your BECTU Rep before embarking on your request.

Any appraisal scheme works best when the outcome is agreed by the appraiser and appraisee. It is in everyone's interest to aim for this and to try to ensure that any disagreements are resolved informally.

If you disagree with your appraisal marking, it's best to try to resolve things directly with the appraiser.

However, if you remain dissatisfied you should have a formal right to appeal to your next line manager. You have the right to be represented at such an appeal by your union rep, so you should consult with them as soon as possible.

Whether there is any further recourse to appeal will depend on your employer's appraisal policy so it would be best to consult this after you have exhausted your other options.

The Disability Discrimination Act (DDA) 1995 makes it unlawful for an employer to discriminate against a disabled worker in all aspects of selection, promotion, training, terms and conditions, benefits and discipline or dismissal.

The definition of disability is a physical or mental impairment that has a substantial and long-term adverse effect on the worker's ability to carry out day-to-day activities.

So, if your disability is recognised in these terms, you should consult your BECTU Rep to get advice on whether you have been directly discriminated against on the grounds of your disability, with a view to lodging a grievance under the statutory procedure, and lodging a tribunal application if the outcome of the grievance is not satisfactory.

The DDA sets out the elements to test whether an employer has discriminated against someone on the grounds of disability.

More information on disability.

It would appear your employer is concerned about the amount of time you have been off sick.

Time off for the flu and a broken arm are unlikely to be the main cause for concern, whereas it is the heart problem that is likely to be a long term cause of sickness absence.

The short answer is that you do not have to attend an occupational health appointment. Your employer can request to see your GP and hospital records, but in order for your employer to access your own medical records you must provide them with your express written permission and you are entitled to refuse to do this.

You should be aware, however, if you are not capable of doing your job for reasons of sickness absence, and as long as your employer uses the proper statutory procedures, capability is one of the fair reasons for dismissing an employee.

Contact your union representative who will have experience of your employer's policies and procedures and will be able to assist and advise you before you agree to an occupational health appointment.

Strictly speaking your employer cannot make a deduction from your wages unless it is in your contract (ie you have given your consent), or you have given your written permission to such a deduction being made.

If such a deduction is made, this could be an unlawful deduction of wages.

You will need to exhaust the internal policies for resolving this kind of work-related dispute and the first thing you will need to do is to submit a grievance to your employer detailing the nature of your grievance.

You should do this as soon as possible after you become aware of the deduction of wages.

If this does not achieve a satisfactory result then you can issue a claim in the employment tribunal for unlawful deduction of wages on an ET1 form.

These forms are available online and you can issue your claim electronically.

Remember that there are strict time limits for taking a claim to an employment tribunal.

Firstly, it is recommended you check your employer's work-life balance policies.

It may be that they offer sabbaticals, flexible working policies (not just limited to parents with young children), etc.

It might be worthwhile finding out from other employees whether anyone else has done something similar. This would not be setting a precedent necessarily, but it would indicate that it might be possible.

Whilst you have the right to request a variation to your contract under the Employment Act 1996, it is entirely discretionary.

There is no legal obligation for your employer to consider your request seriously.

Any change to your contract would be permanent and this would also, of course, be reflected in your pay and your benefits package.

From a long-term point of view, if you did reduce to four days your pension would also be reduced.

There have been controls governing noise levels for some time.

However, following an EU directive, new Control of Noise at Work Regulations 2005 came into force for all industry sectors on 6 April 2006 - that is, except the music and entertainment sectors where they come into force on 6 April 2008.

This is because of the complexities of getting the industries to comply.

The aim of the new Noise Regulations is to ensure that workers' hearing is protected from excessive noise at their place of work that could cause them to lose their hearing and/or to suffer from tinnitus (permanent ringing in the ears).

The Control of Noise at Work Regulations 2005 replace the Noise at Work Regulations 1989 and differ by lowering decibel exposure levels.

So, at a level of 80 decibels or above, employers must now assess the risk to workers' health and provide information and training.

At 85 decibels (measured by daily or weekly average exposure), employers must provide hearing protection and designate hearing protection zones.

There is also now an exposure limit of 87 decibels, after taking account hearing protection, above which workers must not be exposed. Under the old regulations, there was no upper limit.

Firstly, you need to state clearly on your invoice a time by which payment is due, and make it clear that it is one month from the date of your invoice, not from the company's receipt of it.

The standard length of time to give is one month. You are within your rights to request it sooner, but one month is usual.

If money is not forthcoming or the company ignores you when you chase it, call the union and ask for a money owing report form.

Once you have filled out all the details and sent it back to us, we can discuss the case with you and contact the employer on your behalf to request payment.

If money is still owing, we can give advice and support to members to take the company to court to recover the bad debt. This is an expensive process for the company and means the company will have a county court judgement and public record of its failure to pay its debts against its name.

Most reputable businesses would not want this.

The union also publishes these companies in its Ask First list in Stage Screen and Radio so that other freelances are warned against working for such companies.

This is a tricky situation and one that is difficult to answer because of the way in which the information was passed from the producer to the prospective employer.

If this negative feedback was contained in a formal written reference, and the information contained in it was wrong, you might be able to pursue defamation proceedings or a negligence claim against the producer.

However, it would be for you to prove that the information was wrong and that you had suffered detriment as a result.

On the other hand, if this feedback is verbal and you have only heard about it by word of mouth, it will be extremely difficult to prove it was actually said.

And again, the onus would be on you to prove that it was inaccurate.

Our advice would be to consult with your union representative or National Official and seek legal advice through Thompson's, the union's legal service.

A contract of employment is an agreement entered into by two parties, giving rise to obligations that are recognised or enforced by law.

Until one of the parties accepts the offer of a job, there is no contract between them.

Once they accept, however, they become bound by the terms of the offer.

It is important to note that a contract does not have to be in writing for it to be legally binding (although it helps to establish what terms have been agreed).

Employee or worker?

There are three different types of relationship - an employee, a worker (someone who works on a casual basis) or someone who is self employed.

Although there is no legal test for establishing whether someone is an employee or a worker, the person is likely to be an employee if the employer: provides the work; controls when and how the work is done; provides tools, equipment and even a uniform.

If, however, someone else can substitute for the worker, if they determine their own hours, hire their own helpers and pay their tax and national insurance on a self-employed basis, then they are probably not an employee.

All this matters because employees enjoy far more rights than workers or people who are self-employed - for instance, the right to claim unfair dismissal (if they've worked for a year) as well as various maternity and paternity rights and the right to request to work flexibly.

Express contract terms

Express contract terms are terms explicitly set out in the employment contract and, as a result, both parties know (hopefully) what they have agreed to.

These terms deal with specific working arrangements including pay, hours, holidays, place of work, provisions for sick pay, pensions and other benefits.

Implied contract terms

These are terms that the employer and the employee are assumed to have agreed.

Terms regarded as so obvious that they need not specifically be included - for example the employer's duty to provide a safe working environment, mutual trust and confidence. The implied term of trust and respect has proved to be more powerful, in certain circumstances, than an express term of the contract.

Incorporated terms

These are terms that are incorporated from other sources, for example from collective agreements or works rules.

These can be expressly incorporated (for instance when the individual contract states that certain terms are regulated by a collective agreement); or impliedly incorporated (for example when custom and practice is so well-established that the terms of collective agreements are incorporated into individual contracts).

Statutory terms

These are terms that are implied or imposed by statute, such as the right to a minimum wage and the right to statutory minimum annual leave.

The written statement

There is no legal requirement for an employer to provide a contract of employment, nor for it to be in writing.

Under section 1 of the Employment Rights Act 1996, however, the employer must provide the employee with a written statement within two months of starting work. This must include information such as the names of the employer and employee, employment start date, pay, hours, holidays, notice, sickness pay scheme, any pension scheme, place of work, job title or description of duties, details of any disciplinary and grievance procedure.

As part of the new statutory dispute resolution procedures, a tribunal can award an extra two or four weeks' pay to an employee if their employer does not give them a written statement or notification of a change of a term or condition of employment.

Any changes to the contract terms must be notified to the employee in writing within one month of the change taking effect.

When can an employer vary the contract?

An employment contract is a legally binding agreement between two parties.

A term of a contract cannot, therefore, be varied unilaterally without giving rise to a breach of contract.

But, can an employer withdraw a discretionary benefit from staff, such as permanent health insurance? The simple answer is yes. It is only if it is explicitly a term of the contract (say, for senior management), that they cannot.

Conclusion

In theory, both parties freely enter into a contract of employment that is negotiated by two equal parties.

In reality many workers have little choice but to accept the terms on offer.

Overall, the development of individual rights through employment contracts is one that is still heavily reliant on the negotiation of terms and conditions, both collectively and individually.

'Additional leave' is the other name for long service leave and is earned after 10 years' service. After 10 years' service you are entitled to half a week of long service leave and for every year worked you get a further half week. You can only take them as a full week.

But beware, in the closing months of 2005 BECTU members who had been working full-time for more than 10 years and then moved to part-time discovered the BBC were trying to cut back the long service leave they had already earned. In one example a member of staff that had accrued three weeks or 120 hours of long service leave was told that because they were now working half-time this was only worth one and a half weeks or 60 hours of leave.

BECTU pointed out to the BBC that this appeared to break the law by treating part-time workers less favourably than full-time. As a result the BBC climbed down and agreed that however many hours or days of long service leave had been accrued before the individual became part-time they would still be allowed to take that amount of time off.

In a recent House of Lords case, they decided that as a general principle a claim for unfair dismissal must relate to employment in Great Britain.

The House of Lords looked at employees who did not work in one particular place and they decided that tribunals should look at the conduct of the parties and the way that the contract has been operated to decide where the base actually is as opposed to simply just looking at the terms of the contract.

Therefore, in summary the House of Lords decided that the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour law. But they added that there were exceptions, such as a foreign correspondent who lived abroad for many years but remained a permanent employee of a British newspaper.

In personal injury claims the term 'no win, no fee', means that if you do not win your claim for compensation, then you do not have to pay your solicitor's fees.

However, it does not always mean that your claim is being dealt with on a completely cost-free basis because the phrase does not mention what fees you would need to pay if you won your claim.

Unfortunately, the term has often been adopted by unscrupulous companies to mislead their clients into thinking the service is cost-free. In fact, when the claim is successful, their solicitor then issues them with an invoice or deducts a percentage of their compensation for costs accrued.

Under the Transfer of Undertakings (Protection of Employment) or TUPE regulations, your existing contract of employment will be honoured and therefore your employment will be continuous.

If, for example, you had worked at your current company for 10 years, then this will count with your new company. The law provides that all existing terms and conditions, excluding pensions, should transfer and be protected by the company. The new employer has to honour the existing terms and also any non-contractual issues that you can demonstrate had been covered by either a local union agreement or custom and practice.

Before a transfer takes place, you should ask your current employer to put in writing all existing terms and conditions and all existing local agreements so that at the time of transfer there is no ambiguity about what is being transferred.

BECTU will argue that your pension should also be protected, however this is negotiable, as it is not covered by the TUPE regulations.

Changes to the contract can only be made with your agreement, or if the new employer can demonstrate that the reason for the change was for economic, technical or organisational reasons and not related to the transfer of work.

From 6 April 2006, all existing tax restrictions on the size of pension - occupational (ie company), personal and stakeholder - you can build up and their contribution levels are being abolished.

The limit on the amount of pension you can draw (two-thirds of pensionable pay in a defined benefit (DB) scheme) will be replaced by a single 'lifetime allowance' (LTA) limit.

The LTA is the pension fund size limit individuals can save without incurring tax penalties, starting at £1.5m per person increasing annually to £1.8m by 2010, and reviewed every five years. For a defined contribution (DC) scheme this is the maximum pension pot you can save before tax is charged. For a DB scheme, there are complex rules on valuing your pension but is essentially £1 per annum of pension you earn is valued as £20.

Limits on contributions you can pay in are being replaced, for all schemes, by an 'annual allowance'. This starst at £215,000, rising to £255,000 in 2010. (For a DC occupational scheme this is the maximum annual contribution, whereas it is the capital value built up annually for a DB scheme.) Employees and self-employed will get tax relief on contributions to schemes up to 100% of earnings or £3,600, whichever is higher.

The amount of tax free cash that a DB scheme can pay is also going up. Schemes can permit a member to convert up to 25% of their pension. The amount of cash per pound of pension surrendered will be up to the trustees of the scheme.

One mandatory change for all schemes is that after 6 April 2010, a pension cannot be paid before the age of 55, (unless on the grounds of ill-health). It is currently set at 50, where it will stay until 2010.

Unless the claim includes a discrimination case or you were dismissed for 'whistle-blowing', the maximum award is £67,100 (reviewed annually).

This sum is made up of two parts. The first is a 'basic award' calculated on your length of service and your age, for which the maximum is £8,700. The second is a 'compensatory award' that covers loss of income through being unfairly dismissed, and loss of wages until you find a new job.

There is a duty upon the individual to mitigate their losses by attempting to find alternative employment.

Compensation may be reduced if the tribunal feels you were either partly to blame for the dismissal or you have not taken adequate steps since the dismissal to find alternative employment.

It is also worth remembering that the tribunal can reduce awards and in some cases refuse to hear your case if you fail to comply with the statutory disciplinary/grievance procedure.

NB: In the year 1 April 2004 to 31 March 2005 the average award was just over £7,000.

The Working Time Regulations say that you are entitled to a minimum daily rest break of 11 hours, ie. 11 continuous hours from your personal 'wrap' time one day, to your personal call time the next. (Young workers between 15 and 18 are entitled to a minimum daily rest break of 12 hours).

You are also entitled to a weekly rest day of 24 hours within each seven-day period (young workers are entitled to a minimum weekly rest period of 48 consecutive hours); or a fortnightly rest period of 48 consecutive hours within each 14-day period.

In practice, each rest day will follow an 11-hour (or longer) daily rest period. So, after a six-day working week, you should have at least 35 hours rest between your personal wrap time and next call time; after a five-day working week, it should be 59 hours rest.

Specific circumstances where the production could legitimately ask you to work on into your break are:

• Where there is a genuine need for continuity of service or production beyond the planned schedule;
• Where work is affected by unusual or unforeseeable circumstances beyond the producer's control;
• Where work is affected by an accident or imminent risk of an accident.

You are entitled to 'equivalent compensatory rest' if a rest break is breached. So, if one hour's rest is lost, it should be added to a subsequent break as soon as possible.

BECTU's advice is to draw the breach to the appropriate person's attention in writing as soon as possible. You will not be able to get back any lost time once a contract ends unless you can prove you raised it at the time and the employer refused to act.

You are entitled to seek additional payment for rest break breaches, but this is in addition to your right to equivalent compensatory rest. This right cannot be bought out.

Under Regulation 8 of the Fixed Term Contract Directive an employee on a fixed-term contract can become a permanent employee if:

• The employee is already employed under a fixed-term contract which has previously been renewed;
• The employee has been continuously employed on a fixed-term contract for four years or more since 10 July 2002;
• The employer cannot objectively justify renewing the last contract, ie the business need is only for a fixed period of time to finish that work which would then disappear.

A contract is not a piece of paper. If you agree by phone to work for an employer, and they agree to pay you for that work, then in law a contract exists. It may be difficult to prove, and a document setting out terms of the agreement in writing is sensible and useful. But don't assume that if you have no piece of paper, that means you have no contract and no rights.

Maternity leave, paternity leave, adoption leave, parental leave and dependant leave are only available as a right for workers employed as employees.

So these rights will only apply to those freelancers who can be characterised as working under a contract of employment (ie on the payroll), rather than as someone who is working under a contract for services, as is the case with most freelances.