Advice: You still have employment rights, even without a written contract

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Q. I have been employed for two years, but I have never received a contract of employment, I keep asking my employer for this but they are not giving it to me. What are my rights?

A. There is always a contract between an employee and employer. You may not have anything in writing, but a contract will still exist. This is because your agreement to work for your employer and your employer’s agreement to pay you for your work forms a contract. Your employer does have to give you a written statement within two months of you starting work. The statement must contain certain terms and conditions.

A contract gives both you and your employer certain rights and obligations.

The rights that you have under your contract of employment are in addition to the rights you have under law, such as, for example, the right to a national minimum wage and the right to paid holidays.

A contract of employment will usually be made up of two types of contractual terms. These are express terms and implied terms.

Express contractual terms in an employment contract are those that are explicitly agreed between you and your employer and can include:

- amount of wages, including any overtime or bonus pay:

- hours of work:

- holiday pay and leave:

- sick pay;

- how much warning (notice) the employer must give you if you are dismissed.

The express contractual terms may not be in one written document, but may be in a number of different documents. They may not be written at all. The express terms may be found in:

- the job advertisement;

- a written statement of main terms and conditions;

- any letters sent by your employer to you before you started work;

- instructions made by your employer on a notice board at work;

- an office manual or handbook;

- payslips.

You may not have possession of all the relevant papers. You may be able to get copies from your Personnel Department, foreman, or trade union representative.

You should always keep any papers given to you by your employer.

Because a contract will still exist even if there is nothing written down, anything which was said to you by your employer about your rights, and anything which you agreed verbally, should be recorded.

Implied contractual terms:

Implied terms in an employment contract are those which are not specifically agreed between the employer and employee.

Implied terms are:

- general terms;

- custom and practice;

- agreements made with the employer by a trade union or staff association.

General implied terms:

The following duties and obligations will usually be implied into any contract of employment:

- the employee and employer have a duty of trust to each other;

- the employer and employee have a duty of care towards each other and other employees;

- the employee has a duty to obey any reasonable instructions given by the employer;

- your employer has a duty to pay your wages and provide work. As long as you are willing to work, your employer must pay your wages even if no work is available, unless your contract says otherwise.

Terms implied by custom and practice:

When dealing with a particular employment problem, there may be no express contractual term covering the matter. In such a case, it is helpful to look at what has happened to other employees in the workplace. This is because if other employees have been given this right, you can argue that you also have the right under ‘custom and practice’.

If you feel that you or your employer have broken the contract, for example, if your employer doesn’t pay you in lieu of notice which you are entitled to, or if your employer is trying to change your contract get free, confidential and independent advice from your nearest Citizens Advice– go to www.citizensadvice.org.uk/nireland or for further information go to www.citizensadvice.org.uk/nireland