Sec 1 of the Employment Rights Act 1996 deals with the contents of the written particulars of employment – commonly referred to as a contract of employment, and the obligation to provide a copy to the employee. On 6th April 2020, changes were introduced as to the contents and timing of the disclosure.
The Changes
- The statement must be issued on the first day of employment. Previously, it had to be issued within 8 weeks of starting work.
- The statement now needs to be given to employees as well as workers. Previously, this only applied to employees.
- The statement must now also contain details of the working hours or pattern.
- Details of holiday entitlement.
- Details of maternity and paternity leave entitlements.
- Where relevant, details of probationary periods/duration.
- Details of any benefits.
- Details of any training and fees where relevant.
These changes, aimed to provide clarity, may pose practical difficulties for employers.
For example;
- How does an employer decide who is an ‘employee’ and who is a ‘worker’?
- The requirement to indicate the working hours/pattern may be difficult to outline where the hours will vary from day to day or week to week, especially in relation to casual staff or those taken on under zero-hours contracts. By their very nature, such employees will be operating under different hours from week to week. Does that mean, that a new statement must be issued to reflect each change or each assignment? As yet, it is unclear how exhaustive these details must be, but it is anticipated that the statement should outline all the possible hours/patterns they may be expected to work.
- The requirement to outline the benefits (other than those already mentioned elsewhere). Does this refer to benefits with a financial value such as travel vouchers, travel loans, salary sacrifice schemes, lunch vouchers? It is anticipated that such benefits must be included.
It is debatable whether non-contractual benefits should be included. As the aim of the changes is to create transparency, it is advised that the benefits should be mentioned, and whether discretionary or not. Where these are conditional, reference should be made for referral to the staff handbook for details.
- The requirement to outline details of mandatory training courses. These training requirements may change frequently due to a change imposed by the government or trade body or federation. It therefore means employers will have to create a bespoke training plan for each employee, whereas before a generic statement would have sufficed. With every change, does the employer issue a new statement?
- As the statement now must be issued to employees as well as workers, with details of benefits previously only available to employees, it is possible that staff may become confused about their status. Employers ensure that separate statements are given to employees and workers with clear differentiation.
Employment Tribunal
The risk for the employer is that the employees may claim, or an Employment Tribunal may conclude, that the statement was inaccurate or incomplete. Ultimately, it will be for the Tribunal to determine that question. The good news is that failure to disclose the main particulars is not a stand-alone claim. It is only relevant as part of a more substantive claim such as unfair dismissal or discrimination claim. Where such a claim is established, the Tribunal can award between 2-4 weeks wages.
Given the level of information that now needs to be included, and the accompanying uncertainty, employers should seek professional HR advice to avoid the potential pitfalls. Quest Services has the necessary expertise to offer the initial practical advice and consultancy services to draft your statutory documents.
For more information call us on 01455852028 or contact us here.
