There are many things to check and get into place when a new employee starts with an organisation. The contract of employment is one such priority. A recent case has highlighted the possible consequences for an employer failing to issue a written ‘statement of particulars’. It is particularly important therefore to remember that there is a legal duty placed on employers to issue new employees with a written statement of particulars.
Statement of Particulars
This is fancy legal jargon for a summary of the main employment law terms upon which the employee is engaged and is more commonly called the contract of employment. It should include things such as, but not limited to:
- Name of the employee and the employer;
- Start date of employment;
- Rate of pay and pay frequency;
- Normal working hours;
- Holiday entitlement;
- Notice periods and;
- Job title or a brief job description.
The full list of required terms is contained within sections 1(3) and 1(4) of the Employment Rights Act 1996.
This written statement of particulars must be issued within a period of 2 months of the commencement of employment. Failure to do so could result in a tribunal award against the employer of 4 weeks’ pay.
What happens when the employee works for the employer for a period of less than 2 months? Does the requirement to issue the written statement of particulars still exist? This was the subject of the recent EAT decision in Stefanko and others v Maritime Hotel Ltd.
Less than 2 months’ service?
If the employee has worked continuously for one month but for less than 2 months, the employer is still required to issue a written statement of particulars to them. Currently, for those employees who will work for less than one month, there is an exception to that requirement. That will be repealed however in April 2020 and at that point, all employees, regardless of the length of service, will have to be given a written statement of particulars as soon as their employment commences. The legal message is clear: keep yourself right and follow best practice, issue the written statement of particulars straight away following an employee starting with your organisation.
A statutory right
Always remember that it is a statutory right to issue an employee with a written statement of particulars and, if the employer fails to issue one, and the employee requests it, then that is a failure to allow a statutory right and could amount to automatic unfair dismissal (if the employee is dismissed over the issue or they resign and claim constructive unfair dismissal). This loophole, therefore, allows employees who have less than two years’ service to claim unfair dismissal.
3 Top Tips for Employment Contracts
- Issue a written statement of particulars as soon as possible following the commencement of employment.
- Make sure you include all of the terms required by law. If you are unsure, take advice straight away.
- If the written statement of particulars is requested by the employee, do not ignore that request as this could result in a claim for automatic unfair dismissal.
If you need any assistance putting employment contracts in place, please contact a member of the award-winning Blackadders Employment team.