Section 1 of the Employment Relations Act 1996 (ERA 1996) entitles you to a written statement of initial employment particulars within two months of your start date. This is called a Section 1 statement. It covers the major terms of your employment and must be updated every time changes are made to those terms (sections 1-4, & 11 ERA 1996, section 35 & 37 Employment Act 2002 (EA 2002)).
Your employer is allowed to use alternative documents such as a contract of employment or letter of appointment instead of the Section 1 statement (sections 7A & 7B ERA 1996). The Section 1 statement is not an employment contract, but it is evidence that there is a contractual relationship between you and your employer.
During the two months, if you start working abroad for more than one month, you must be given the Section 1 statement before you leave to begin work abroad (sections 1(2) & 2(5) ERA 1996). If your employment lasts for less than one month (short-term employment), you are not entitled to receive a Section 1 statement (section 198 ERA 1996). So long as you have worked for one month or more, you are entitled to the Section 1 statement even if you have left the job after two months (section 2(6) ERA 1996).
From 6th April 2020, the Employment Rights (Miscellaneous Amendments) Regulations 2019 extends the right to a Section 1 statement to all categories of ‘worker’ and not just ’employees’. On the same date, the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 says that the right to a Section 1 statement starts on the day that you start work.
Under Sections 1(3)-(4) ERA 1996 the Section 1 statement must contain the following:
It must also contain particulars, at a specified date not more than seven days before the statement is given of ;
This does not mean that there has to be agreement about these matters between you and your employer, but if there is an agreement then it has to be set out in the Section 1 statement. Also, if there is no agreement on any of these matters, then the statement should say so. So, if you are not entitled to any (contractual) sick pay, the statement should say so (section 2(1) ERA 1996).
If your employment is not intended to be permanent, the statement should give the period for which it is expected to continue, or if it is for a fixed term, the date it is to end.
Where you are required to work abroad for more than one month, the Section 1 statement must specify:
The following particulars must be in one document (section 2(4) ERA 1996)
Terms dealing with disciplinary and grievance rules and procedures, sickness and injury absence and pay, pensions and pensions schemes and collective agreements can be dealt with in a reasonably accessible separate document (such as a staff handbook or collective agreement) which should be mentioned in the written statement (sections 2(2), 3(1) & 6 ERA 1996).
The Section 1 statement must include a note of the following (section 3(1) ERA 1996);
These requirements do not apply to rules, disciplinary decisions, decisions to dismiss, grievances or procedures about health and safety at work (section 3(2) ERA 1996).
Your employer must give you a written statement of any changes at the earliest opportunity and, in any event, not later than one month after the change in question (section 4 ERA 1996).
If the change is because you have to work abroad for more than one month, the written statement of change must be given when you leave the UK to begin work, if that is earlier.
In Wetherill & others v Birmingham City Council , the Court of Appeal said that it may not always be necessary for an Employer to provide separate written notification of such changes to each affected employee. In this case, Birmingham City Council had so many employees that it was impracticable to issue transitional arrangements tailored to the circumstances of each individual employee (those transitional arrangements had been negotiated with a trade union). Here, the requirement to notify an employee of changes to their terms of employment could be met by:
Where the company is only changing its name or the changes relate to the identity of your employer and your continuity of employment is not broken (such as TUPE) your employer does not have to give a new section 1 statement of particulars and can just give notice of the relevant change instead (section 4(6) & (7) ERA 1996).
Where the change is to the identity of your employer, the notice of changes must specify the date on which your continuous employment began (section 4(8) ERA 1996).
Under section 11(1) ERA 1996, if your Employer does not give you a Section 1 statement within two months or gives one which does not comply with the law, you or your employer can apply to the Employment Tribunal to decide what particulars should have been included in the statement.
Section 11(2) adds that where you have been given a statement that purports to comply with the statutory requirements and a question arises as to the particulars which should have been included, either you or your employer can refer the question to the Employment Tribunal for a determination.
Under section 38 EA 2002, the Employment Tribunal will award you compensation if your employer does not provide a proper Section 1 statement. But, that claim must be brought together with a claim listed in Schedule 5 EA 2002 which should have been decided in your favour. So, compensation for failure to provide a written statement is not a stand-alone claim, and in order to get it, you should have won the claim that it is attached to. Your employer should also NOT have provided the written statement by the time you file your claim in the employment tribunal.
The Employment Tribunal can find in your favour and either give you no compensation or compensate you. They are not compelled by the law to compensate you. So you could get compensation for your Schedule 5 EA 2002 claim and nothing for the failure to provide the written statement.
Once the ET has decided to compensate you, it must award you two weeks’ pay or increase the compensation for your Schedule 5 EA 2002 claim by the value of two week’s pay. The Tribunal can choose to award four week’s pay instead if it considers it just and equitable in all the circumstances to make the higher award.
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