Employment Rights

According to government guidance:

Zero hours contracts are rarely appropriate to run the core business, but might be useful for unexpected or irregular events such as bereavement leave by staff, to deliver sufficient customer service during peaks in demand, or when preparing to open a new store. 

With many schools having their entire teaching staff on zero-hours contracts, it’s clear the TEFL industry does use zero-hours contracts “to run the core business”. This goes against the spirit of the law, but there are no sanctions in place for employers who abuse zero-hours contracts.

Your contract may not use the words “zero hours”. If your contract gives you no fixed hours of work “as required”, “hours to be agreed” or something similar, you’re probably on a zero-hours contract.

Your employer chooses how much work to offer you, and you choose whether or not to accept. Your employer doesn’t have to specify how many hours of work you’ll get and you are paid only for hours you actually work.

Importantly, in law you must have a genuine choice whether to accept the hours offered or not. For example, if you’re on a zero-hours contract, you can’t be expected to cover another teacher’s class at the last minute.

One of the many problems with zero-hours contracts is that language schools want to have their cake and it too. They are not obligated to offer us work, but they expect us to accept hours as if we are on a salaried, permanent contract. The TEFL Workers’ Union believes this is wrong.

In theory, zero-hours contracts provide convenient flexibility of hours for workers with other commitments like study or care duties.

In reality, it is mainly your employer who benefits due to the imbalance in power. In lean times, using zero-hours contracts your employer is able to push loss of income onto you and your fellow workers. If individuals push back, the employer can simply stop offering them work.  This is sometimes referred to as getting “zeroed-out”.

However, if you’re on a zero-hours contract and your employer stops offering you hours or only offers you a small amount of hours for several weeks, you may be entitled to redundancy pay. If you’re in this situation, contact the union at [email protected] for advice.

No, your employer cannot prevent you from working for another employer. Any kind of “exclusivity clause” in your contract is not legal.

Amongst other rights, you have the right to:

• a written “statement of particulars” outlining your job rights and responsibilities
• the National Minimum Wage (amount updated yearly – note that young workers are entitled to a lower minimum wage) and paid holiday (‘statutory annual leave’) building from the day you start working
• protection from discrimination if you only work part time or if you also work for another employer
• rest breaks: the same as any other worker or employee

If your average weekly earnings fall below the National Lower Earnings Limit, you won’t be eligible for statutory sick pay. If you don’t maintain a continuous period of work with your employer (earnings for multiple jobs are not added together), you won’t qualify for pensions auto-enrolment, statutory maternity leave, or be able to claim unfair dismissal.

The legal options for challenging zero-hours contracts are very limited. However, the TEFL Workers’ Union and other EFL unions around the world have fought back against zero-hours contracts and won. 

If you’re sick of the precarity of zero-hours contracts and want the security of permanent, guaranteed-hours contracts, a representative from the TEFL Workers’ Union will be happy to meet with you and workmates to provide advice and support on how you can raise the issue with your employer: [email protected]

• ACAS: https://www.acas.org.uk/zero-hours-contracts
• WorkSmart: https://worksmart.org.uk/work-rights/atypical-workers/zero-hours-contracts/
• GOV.uk: https://www.gov.uk/contract-types-and-employer-responsibilities/zero-hour-contracts
• Zero Hours Justice: https://www.zerohoursjustice.org/helpline.html

ACAS gives the following examples of when a fixed term contract may be appropriate:

• a seasonal or casual person who has been taken on for a peak period
• a specialist employee taken on for a project
• covering for maternity leave

Clearly these examples are not in keeping with how most language schools use fixed-term contracts. However, as with zero-hours contracts, there are no sanctions in place for employers who abuse fixed-term contracts.

Yes it does. Most important is what’s known as “the four year rule”.

From gov.uk:

Any employee on fixed-term contracts for 4 or more years will automatically become a permanent employee, unless the employer can show there is a good business reason not to do so.

In other words, after four years on a fixed-term contract, you have the right to ask for, and to be put on, a permanent contract. Your employer can only deny your request if they can present an “objectively justifiable” reason for doing so.

If you’ve been on a  fixed-term contract for more than four years, contact the union at [email protected] for advice on how to address this matter with your employer.

Within fixed-term contracts there is a legal principle known as “implied agreement”.

According to gov.uk: 

If an employee continues working past the end of a contract without it being formally renewed, there’s an ‘implied agreement’ by the employer that the end date has changed.

This is important because if your contract is extended by implied agreement, then you have the right to your full notice period if made redundant. Government guidance gives this example:

If a contract was for 1 month but the employee actually worked for 3 months, they’d still be entitled to the minimum notice period (1 week).

If you are made redundant as a result of your fixed term contract ending, this is still a redundancy. Also, if you have more than two years of service, you should be entitled to a redundancy payment. However, your employer is not obligated to include you in a collective redundancy consultation.

On the other hand, if your fixed-term contract is potentially being ended early as a result of a redundancy, then you are afforded the same rights as a permanent employee in terms of a redundancy consultation.

It is complicated and if you have questions, an union rep would be happy to lend a hand: [email protected] 

The main piece of legislation to look at is the The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.  This outlines the rights and protections afforded to those on fixed-term contracts.

It’s important to note that many of the protections afforded to fixed-term workers are related to protection against indirect discrimination. Those with child caring and/or caring responsibilities are more likely to be on fixed-term contracts. Since women are more likely to fill those roles, employers can be challenged in how they use fixed-term contracts on the grounds that they may be indirectly discriminatory against women.

Just because you signed a self-employed contract, that doesn’t make you self-employed.  Rather, it’s the reality of your working relationship – the level of control that you have over your work and your responsibilities and obligations – that determines your employment status. 

Genuinely self-employed people have significant control over their work, can send in their own replacement, create their own schedule, and set (or directly negotiate) the price of their work.  

HMRC has an employment calculator that can help you determine your correct employment status. 

https://www.tax.service.gov.uk/check-employment-status-for-tax/what-do-you-want-to-find-out

When completing the form, ensure you choose ‘If some work is classed as employment or self-employment for tax purposes’.

If you have been incorrectly classed as self-employed, an employment tribunal can compel your employer to pay you the holiday pay to which you were denied and, if you have been dismissed, any notice pay or redundancy pay.

Further information on bogus self-employment can found on ACAS, gov.uk, Citizens Advice, and on worksmart.org:

https://www.acas.org.uk/checking-your-employment-rights

https://www.gov.uk/employment-status

https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/check-your-employment-status/

https://worksmart.org.uk/work-rights/atypical-workers/false-self-employment

The TEFL Workers’ Union has extensive experience challenging bogus self-employment.  If you have concerns or would like someone to talk through the legal guidance with you, you can reach a union representative at [email protected]

As an individual, it is much harder. If you can, network with fellow workers and get union representation. Take notes at all meetings and insist that all information be communicated in writing via email (text messages aren’t good enough!). Don’t wait for your employer to begin the contract change process. If you think something may constitute a contract change, raise it ASAP.

Yes, there is a legal process they are obliged to follow: 

1. Meet you or your representative (e.g. your union rep) 
2. Explain the reasons for the changes
3. Listen to your suggestions

Yes. Guaranteed employment rights like the National Minimum Wage can’t be changed.

Yes, if there is what’s called a “variation” or “flexibility” clause in your contract, your employer can make “reasonable” changes to the terms of your contract.  The changes your employer can make should be very clearly outlined in your contract.  If they can’t give a “good reason”, you can refuse to accept the changes.

Immediately inform them, in writing, that you are continuing to work “under protest”. Contact the union as you will need to begin other legal processes in conjunction with working under protest.

Unfortunately, yes. It’s a complex legal process, but if your employers keeps within legal redundancy procedures, they can. Your employer must be able to show that they undertook a full and complete consultation and it was impossible to come to a mutually satisfactory arrangement. If your employer is considering “dismissal and re-engagement”, it’s important that you seek legal advice or speak to a union representative.

As a last resort, you can sue your employer for “breach of contract” or claim “constructive dismissal” at an employment tribunal over being forced to leave your job because of unreasonable unagreed changes to how you work.

We have experience in disputing changes to employment contracts. If you have concerns or would like someone to talk you through the legal situation, contact us at [email protected]

• https://archive.acas.org.uk/media/316/Advice-leaflet—Varying-a-contract-of-employment/pdf/Varying-a-contract-of-employment-Acas-leaflet.pdf

• https://www.gov.uk/your-employment-contract-how-it-can-be-changed/ 

• https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/changes-to-employment-contracts-overview/ 

Employers don’t have to pay you if training is genuinely optional. But for it to be genuinely optional, there should be no pressure for you to attend and no negative consequences for not attending. 

So, if for example, attendance at unpaid CPDs is used in your yearly appraisal, then there is a negative consequence for failure to attend. Similarly, if teachers who don’t attend CPDs are given less teaching hours or are selected for redundancy on those grounds, this would also count as negative treatment.  In both instances there is a legal argument that CPDs should be paid.

Anytime you are required to undertake unpaid training you should challenge this.

However, the type of training you are asked to undertake is important. As of April 2020, ACAS guidance says:

Whether you get paid for time spent on mandatory training can depend on your contract.

In short, ACAS recommends that you check your contract. It should specify what type of training you can be required to do unpaid. As a general rule, if you are a salaried employee (as opposed to an hourly employee), your employer can ask more of you in terms of unpaid tasks or tasks outside of your core working hours.

If the amount of unpaid training reduces your overall wage to below the national minimum wage, this may be a minimum wage violation, and you should get in touch with the union. 

With regards to health and safety training, the government’s Health and Safety Executive (HSE) is much clearer:

[Employers] must provide training during working hours and not at the expense of your employees

The HSE further elaborates:

Health and safety training should take place during working hours and must be free for employees. 

If your school asks you to do unpaid mandatory training, you should challenge it. The first step is to raise it informally (collectively is always best). If this does not resolve the matter, you can contact ACAS or the HSE.  Alternatively, you can take out a grievance using your school’s grievance procedure.  It’s always best to get union advice first. Contact the TEFL Workers’ Union at [email protected]

This is a grey area. Government guidance is unclear, but warns employers that failure to pay for an unpaid trial shift may mean that they are breaking National Minimum Wage (NMW) legislation.

From HMRC:

Employers who do not pay at least the minimum wage for work trials should consider seeking professional advice on whether this would breach NMW or other employment law.

Unfortunately, HMRC guidance gives the scenario of a teacher undertaking a sample lesson as an example when an unpaid trial shift would probably be justified.

But this doesn’t mean that employers can’t be challenged.  As a union, we believe all work, including trial lessons, should be paid. If you agree, join the union, and get involved.

According to GOV.UK, flexible work ‘is a way of working that suits an employee’s needs, such as working from home or having flexible schedules’ varying days, start and finishing times. 

Even though it is possible to make flexible work arrangements informally, this does not guarantee a correct implementation or prevent future contract changes by your employer.

The Flexible Working Regulations 2014 allowed employees who meet specific criteria to apply for flexible working, and once the request is approved, those changes become permanent amendments to the employee’s contract. However, the Flexible Working Regulations 2014 do not grant employees the right to work flexibly, but rather the right to request flexible work and the obligation for the employers to consider the request. 

In order to have the right to make a flexible working request, a worker 

• needs to be legally classed as an employee (as opposed to a worker or self-employed)
• have worked a minimum of 26 weeks for the same employer
• have not made a similar request in the previous 12 months 

According to ACAS, the employer needs to handle the flexible working request in a “reasonable manner”.  “Reasonable” should include

• assessing the advantages and disadvantages of the application (both for employee and employer)
• discussing the request with the employee directly

Once you’ve made a flexible working request, your employer must make a decision and respond within 3 months unless you agree to extend the 3-month period.

If your employer rejects your request, it must be in writing “giving the business reasons for the refusal”

Possible business reasons for refusing a flexible working request can include:

• additional costs
• detriment to meet customer demand
• inability to re-organise work among existing staff
• he need to recruit additional staff
• impact on the quality or performance of work during the
• period the employee proposes to work
• other planned organisational changes

If your request is rejected, you can appeal following the company’s internal procedures.

If there are complications, both employee and employer should follow ‘solving a workplace dispute’  in your company’s procedures.

ACAS mentions that “If you feel your request has not been handled fairly, you can raise a grievance with your employer”. If raising a grievance does not resolve the problem, it might be possible to make a claim to an employment tribunal or use the Acas arbitration scheme.

If you’re considering making a flexible working request, having the support of a union is crucial. If you need assistance or guidance, you can reach a union rep at [email protected]

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

This can include but is not limited to: 

• Sexual comments or jokes
• Making sexual jokes or comments about someone’s sexuality, gender or gender identification
• Suggestive looks, staring or leering
• Intrusive questions; or a person discussing their own sex life
• Touching someone against their will, for example hugging them
• Sexual assault or rape

All employers have a “Duty of Care’ to protect the welfare of their staff. 

This Duty of Care requires employers to

• Protect employees from experiencing sexual harassment
• Ensure there is a suitable and supportive complaint and reporting procedure

If the Duty of Care is not maintained, this could be a serious breach of your contract and could lead to serious legal action and financial consequences for your employer. 

Employers have a responsibility to prevent sexual harassment in the workplace, to take complaints seriously and to respond to grievances. This includes ‘taking all reasonable steps’ to prevent harassment. 

As a result of the #MeToo movement, the Equalities and Human Rights Commission undertook a review of sexual harrassment in the workplace. In response ,the government clarified the expectations of employers in relation to sexual harrassment. These include: 

• Removing or reducing risks of sexual harassment 
• Offering support to anyone involved in a sexual harassment complaint
• Providing training for all workers on recognising and reporting sexual harassment
• Making sure policies are consistent in having a zero tolerance of sexual harassment

If you face sexual harrassment at work, it’s worth ensuring you have the support of a union representative. This allows you both to understand the law and provides the emotional support that comes from having someone by your side to advocate on your behalf.

If you work in ELT and face sexual harassment at work, you can speak to a union representative by emailing [email protected].  All correspondence is confidential and if you prefer to be represented by a woman or non-binary individual, this will be accommodated.

Schools should aim to have a culture of zero tolerance of sexual harassment.

This includes:

• removing or reducing risks of sexual harassment to make sure your workplace is safe
• offering support to anyone involved in a sexual harassment complaint
• making it clear to everyone who works for your employer, or uses your employer’s services, that sexual harassment will not be tolerated. 
• training all employees and managers on recognising sexual harassment and encouraging them to report it
• making sure all employer policies are in line with all government laws and guidelines on sexual harassment in the workplace

If you’ve experienced sexual harassment, you can make a complaint to your employer, even if it happened a long time ago. 

It’s a good idea to make a note of what’s happened. This should include dates, times and names, including any witnesses. 

You can talk with your employer or someone senior at work as soon as possible to try and resolve the problem. If this does not resolve the issue, or does not seem appropriate in the circumstances, you can raise a formal grievance. 

Alternatively, your employer may have their own specific sexual harassment policy. If so, you should follow that policy and procedure to make your complaint.

You can always contact the union at [email protected] for specific advice and help with raising issues formally.

If you choose to tell your employer, they should talk to you about whether you want to report it to the police, and should support you if you choose to report it. Before doing this, your employer should get advice from a specialist helpline.

When it’s a crime, for example If you’ve been sexually assaulted or raped at work, there are specialist helplines you can call for support and advice. They can help talk through your options.

Your employer should not put any pressure on you to make any particular decision. If you do not want to tell the police, you do not have to.

Further information on sexual harrassment can be found from:

Citizen’s Advice: https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/sexual-harassment/ 

The Equality and Human Rights Commission:

https://www.equalityhumanrights.com/en/sexual-harassment-workplace

Worksmart.org

https://worksmart.org.uk/work-rights/discrimination/sexual-harassment

As with all workplace issues, the TEFL Workers’ Union provides support, guidance, and representation to our members. If you face any concerning behaviour at work, you can arrange a time to speak to a union representative by emailing [email protected]

According to the Employment Rights Act 1996, interim relief is an order by the Employment Tribunal that preserves employment until after the tribunal has agreed or not the employee claim for unfair dismissal.

It can be adopted only in specific cases, for example if employees:

1. are being dismissed on grounds related to union membership;
2. have refused to comply with a requirement the employer imposed in breach of the working time regulations;
3. have made a protected disclosure (otherwise called whistleblowing);
4. performed any functions as a trustee of an occupational pension scheme.

In simpler terms:

The case of an employee going public regarding false claims made on the furlough schemes is a good example. They are asked to work, but the employer claims furlough pay which means that they should not be working – this disclosure is in the public interest.

Another example is a breach of health and safety regulations. Employees say there is a risk for health and safety. If they are dismissed because of that complaint, this is dismissal on whistleblowing grounds.

1. The employee can present an application for Interim Relief within 7 days following the effective date of termination (EDT). EDT is considered on the date on which the termination takes effect – either a contract of employment is terminated by notice, without notice or a limited contract is not renewed.
2. Start ASAP! If the employees suspect that they are going to be fired for whistleblowing, they should get immediate advice from a lawyer or trade union and start collecting evidence;
3. Unlike the normal dismissal claim, Interim Relief does not apply to dismissal for conduct, performance, redundancy and cannot be even used in discrimination and victimisation cases – it applies only to trade union activity and whistleblowing!
4. Interim Relief is only available to the legal category of employees and not workers. However, the normal two-year qualifying period to take your employer to tribunal does NOT apply.
5. If you think you may qualify for interim relief, it is worth going for it. If you are successful it will preserve your employment and give impetus to your employer to settle the case in your favour.
6. The bar to be granted interim relief is extremely high. So even if your claim for interim relief is not successful you may still win at employment tribunal.

The ET1 claim form needs to be filled in within 7 days and can be accessed at GOV.UK.

To increase your chances of securing interim relief, employees should collect documentary evidence (e.g., a paper trail) and clearly set out:

• The concern raised with the employer
  • When these were raised (date and time)
  • How these were raised (verbally or in writing)
  • The employer’s reaction
  • Critically, how the necessary elements of Interim Relief are satisfied

The tribunal should arrange a hearing and decide how to move forward regarding the application as soon as feasible.

If the employee wins, the tribunal will order that the employee must be re-instated (brought back into the former job) or re-engaged (brought back into a different job on comparable terms).

The employer will likely be unwilling to re-hire the employee, so the tribunal will order to continue to be paid their salary and other benefits until the final hearing occurs.

It goes without saying that strategically winning an Interim Relief order will also favour the employee when negotiating their settlement: it strongly signals that the judge considers the case a really good one.

Winning at this stage does not secure victory at the final hearing. Alternatively, cases lost at the Interim Relief stage have been won at the final hearing. Also, losing at the final hearing still does not entail paying back any Interim Relief award.

Gov.UK:

https://www.legislation.gov.uk/ukpga/1996/18/part/X/chapter/II/crossheading/interim-relief

Protect Advice:

https://protect-advice.org.uk/interim-relief/.

WorkSmart:

https://worksmart.org.uk/work-rights/enforcing-your-rights/legal-routes/what-claim-interim-relief.