Oh no you have rights and I can’t let you think otherwise!

The UK employment system looks like a thin layer of statute, but it sits on a very thick, centuries old body of common law. If you read the Employment Rights Act 1996, UK workers appear to have quite limited protections. The reality is most of the heavy lifting is done by judges, not Parliament.

The most important unwritten right is the implied term of trust and confidence. It’s not in your contract. It’s not in a statute. But it exists because the House of Lords said so in Malik v BCCI in 1997. What it means is the employer and employee have to operate in a way that’s never calculated or likely to damage the relationship of trust. If behaviour does, the employee can resign and claim constructive unfair dismissal. What counts as a breach is enormous. Humiliating someone in front of colleagues. An unjustified disciplinary because the manager doesn’t believe you. A false accusation. None of it is written down, we see it through case law.

There’s other implied terms too. A duty to provide a safe system of work, which predated health and safety statute by a long time. A duty to take reasonable care of employees including mental health. A duty not to conduct business in a corrupt manner.

The Employment Rights Act, Equality Act, Working Time Regulations, all they do is set a minimum floor. The meaning is almost entirely judge made. If a judge has consistently ruled a certain way and it’s stood the test of time, that’s the law. Not what’s on the paper. Rights can also become contractual through custom and practice. If an employer has consistently paid an enhanced redundancy package or granted a benefit over a long period, it crystallises into an implied contract term. Even if the written contract says otherwise. Even if the employer never intended it.

The problem is line managers and HR business partners operate on a mental model that’s a few decades out of date and three to four layers too shallow. They think in terms of contracts, policies, handbooks, because those are the documents in front of them. The implied terms, case law, custom and practice are invisible unless you’re trained to look.

So we see a line manager going for a “quiet word” with an employee. In many ways that’s actually disciplinary, because you’re triggering procedural unfairness later. A performance improvement plan designed with an exit in mind is a breach of trust and confidence, yet we see it all the time. That’s why people put on performance plans and then exited usually receive a settlement when they contact ACAS. Even probation, that we can let you go for any reason, true for unfair dismissal, entirely untrue for discrimination, whistleblowing, or asserting a statutory right. Managers act on documents and org charts. The law operates on the relationship and the conduct. The two diverge substantially, and this leaves an enormous gap for tribunal claims.

Ultimately, European employment law makes it very hard for a company to fire you. The UK doesn’t do this. They can get rid of you. But when they do, you’ll very quickly find you have the ability to engage ACAS and negotiate a settlement, and if they don’t agree, the tribunal more than likely will. The EU means they can’t get rid of you. The UK means they can get rid of you easier, but you have much quicker access to a settlement payment.​​​​​​​​​​​​​​​​

If they treat you bad, get your £15 to £50k :) don’t leave it on the table.