Failure to provide a written statement of employment particulars
14 January 2021
When someone begins a new job, whether full-time or part-time, they should receive a document from their employer that summarises the main terms of their employment. The official name for this document is a written statement of employment particulars, and it is something required by law.
Unfortunately, in some instances, employees are not provided with the relevant documents, which is concerning as it means they are unaware of their contractual rights. This could leave an individual vulnerable to issues such as unfair dismissal. Luckily, they do have a set of legal rights that apply whether or not the appropriate documentation is provided. If an employee is not given a written statement of employment particulars, legal redress could be appropriate.
The statement is an important document that defines the terms of employment. Therefore, it’s vital that employees receive one, and it is also the reason that the law places such a focus on employees receiving a written statement in a timely manner.
So, what exactly is a written statement of employment, what should it include and what can be done if an employer doesn’t provide one?
What is a written statement of employment particulars?
The written statement of employment particulars is sometimes mistaken for a contract of employment, but the two documents are quite different. The statement is made up of two complementary components. These are the main document which is known as a principal statement and a wider written statement. Anyone who is classed legally as an employee or a worker has a right to receive one.
When must an employer provide a written statement of employment particulars?
The principal statement must be provided to the employee on the first day of their employment, if not before. The wider written statement should be provided within two months from the beginning of employment. If an employer makes any changes to the wider written statement, the employer should consult accordingly with the employee. The right to a written statement of employment particulars also applies to agency workers.
What kind of details should be included in the statement of employment?
There are a number of details that should be included in the principal statement. These are:
* The employer’s name and address
* Job title or description
* Start date (and the date of a previous date if continuous
* Place of work and whether they might have to relocate
* Hours and days of work
* Salary and payment frequency
*Holiday entitlement (and if that includes public holidays)
* Contract length (and what the end date is if it is a fixed term contract)
* Details of the probation period
*Any other benefits
* Mandatory training and whether or not this is paid for by the employer
The wider written statement should include more detailed information or details of where this information can be found, such as in the employee handbook. This information should include:
* If the job is not permanent, details of the period for which employment is set to continue. If it’s for a fixed period, the date on which employment is set to end.
* The length of the notice period that an employee is required to work.
* Details of any relevant collective agreements that might apply.
* Full details of pension schemes and entitlements.
* Details in terms of how an employee can raise a grievance and subsequently appeal that decision.
* The written statement doesn’t have to include the following details, but if they’re omitted, it must state clearly where these details can be found.
* Procedures around sickness absence and pay
* Other paid leave (for example maternity leave and paternity leave)
* Notice periods.
What if an employee is working abroad?
If an employee is obliged to work abroad during the first two months of their employment for more than one month, then their employer is legally obliged to provide a written statement of employment particulars before they leave the country. This should include:
* Details of the period that the employee is required to work abroad.
* The currency in which the employee will be paid during their time abroad.
* Any additional benefits and payments that the employee will receive.
* The terms and conditions relating to the employee’s return to working in the UK.
What happens if an employer fails to provide a written statement of employment particulars?
If an employee does not receive a written statement of employment particulars within two months as set out above, they may be able to submit a complaint to an Employment Tribunal such as unfair dismissal, equal pay and discrimination. The Tribunal may then decide to award a minimum payment of two weeks’ salary, or a maximum of four weeks’ salary. However, this right only applies if the employee has been able to successfully bring another substantive claim, so stand-alone claims cannot be made. An award for compensation can only be made when an Employment Tribunal makes a ‘finding in favour’ of an employee in relation to one or more other claims against the employer.
Attempting to dismiss an employee for exercising their right to a written statement of employment particulars is immediately regarded as unfair dismissal, with no period of qualifying employment required.
What changes were introduced in April 2020?
In December 2018, the government published its ‘Good Work Plan,’ as a response to the 2017 Taylor Review of Modern Working Practices. This contained details of changes to the Employment Rights Act 1996 that came into effect in April 2020. As a result of these changes, ‘workers’, as well as employees, are entitled to a written statement of employment particulars. These changes cover agency staff, giving them the same rights to compensation as contractual employees.
Are there any recent case examples?
To illustrate how a tribunal claim may currently be made, and how it might be resolved, it’s helpful to refer to a recent case. In the 2015 case, Gultekin v Advanced Collection Systems Limited, an Employment Appeal Tribunal had to consider whether an award should be made in relation to an admitted breach of legislation. Parts of the claim had been settled prior to the case being heard, and the remaining parts of the claim had been unsuccessful.
The claimant had made an allegation of unfair and wrongful dismissal following her resignation without notice. This resignation was prompted, she claimed, by a breach of conduct by the employer whom she alleged had been guilty of bullying and intimidatory behaviour. She also claimed for unpaid holiday and notice pay. A short while after she resigned, the employer paid her notice period even though they were under no requirement to do so. They also paid her additional sums that had been requested in regards to holiday pay. Gultekin’s initial claim to the ET stated that she had not been paid for her notice period. The employer refused this, at which point the claimant attempted to withdraw that part of her claim.
The claims of bullying and unfair dismissal were rejected by the Employment Tribunal, but during the hearing, it emerged that there had been a failure to provide a written statement of employment particulars. Believing that Ms Gutelkin’s complaint regarding the non-payment of notice pay had been made prior to her employer paying her the money, the Employment Tribunal awarded Ms Gutelkin £1,800, which amounted to 4 weeks’ salary, for the failure to provide a written statement of employment particulars. They also awarded £150 as a fee reimbursement on the understanding that the claimant’s withdrawal of a justified claim amounted to a finding of fact in her favour.
Because of the intricacies and misunderstandings of this case, the employer appealed to the Employment Appeals Tribunal. They upheld the appeal in the employer’s favour as the Employment Tribunal had erred in law on a number of points. Even if the Employment Tribunal had been correct in its belief that Ms Gutelkin’s claim regarding notice pay was only resolved after proceedings had been issued, they would still not have been able to make the award. Section 38 does not allow an Employment Tribunal to make an award unless a claim has been settled in favour of the claimant. It also does not allow for the withdrawal of a claim.
As a result, the Employment Appeal Tribunal ordered Ms Gutelkin to pay the employer’s tribunal fees of £1,600.
This complex and convoluted case illustrates some of the questions that can arise as a result of linking the failure to provide a written statement of employment particulars with another substantive claim. A successful claim for another substantive employment issue has to be achieved before any compensation for not being issued a statement can be awarded.
Seek professional advice
This is a complex area of employment law for employees, agency workers and employers alike. If you have any concerns regarding written statements of employment particulars, you should seek professional legal advice. If you are currently employed but have not received a statement, you may be able to make a claim if you have other substantive grounds for complaint against your employer.
If you are an employer concerned about how best to meet the requirement, you can find an example of what a statement should include on the government website.
If you would like further information or advice on any employment related matters then contact our award winning legal team 01267 239 488 to find out more.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.