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Written statement of employment particulars


written statement of employment particulars

The written statement

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).


Extension to all workers

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.


What the statement must cover

Under Sections 1(3)-(4) ERA 1996 the Section 1 statement must contain the following:

  • your name and your employers name
  • the date when your employment began
  • the date on which your continuous employment began, taking into account any employment with a previous employer which counts towards that period

It must also contain particulars, at a specified date not more than seven days before the statement is given of ;

  • the scale or rate of pay or the method of calculating pay
  • pay intervals (weekly, monthly or other specified intervals)
  • the notice that you must give and receive
  • your job title or a brief description of the work you are employed to do
  • your place of work or, if you work at various locations, an indication of that and your employer’s address
  • any collective agreements which directly affect your terms and conditions of employment, including, where your employer is not a party, the names of the parties to the collective agreements
  • any agreed terms about hours of work
  • any terms and conditions about holidays (including public holidays) and holiday pay .The particulars given must be enough to allow your entitlement, including any accrued entitlement on termination of employment, to be precisely calculated
  • any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay
  • any terms relating to pension and pension schemes

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.


Work abroad

Where you are required to work abroad for more than one month, the Section 1 statement must specify:

  • the period of time you will be working abroad
  • the currency in which you will be paid whilst working abroad
  • any additional pay and benefits you are entitled to because you are working abroad
  • any terms and conditions about your return to the UK

Particulars to be included in the same document

The following particulars must be in one document (section 2(4) ERA 1996)

  • your name and your Employers name
  • date employment began
  • date continuous employment began
  • rate of pay
  • timing of payment
  • hours of work
  • holiday entitlement
  • job description
  • place of work

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).


Particulars of disciplinary procedures

The Section 1 statement must include a note of the following (section 3(1) ERA 1996);

  • The disciplinary rules that apply to you, or a reference to a reasonably accessible document containing them such as a staff handbook.
  • The procedure used when making disciplinary decisions or a decision to dismiss you, or a reference to a reasonably accessible document containing the procedure  such as a staff handbook.
  • The person to whom you can apply if you are unhappy with any disciplinary decision made about you or any decision to dismiss you.
  • The person to whom you can send a grievance and how you should raise a grievance.
  • An explanation of any further steps such as your right to appeal or a reference to a reasonably accessible document containing the appeal or other procedure such as a staff handbook.

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).


Changes to written particulars

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:

  • issuing a circular that sets out the proposed change and
  • bringing that circular to the attention of the relevant employees

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).


Reference to the Employment Tribunal

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.


Compensation

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.

Uploaded: 18/02/2020

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