When it comes to contracts of employment, timing is everything!

Section 1(2) of the Employment Rights Act 1996 details the rights of employees to receive a written statement of the particulars of their employment. Often contracts of employment are verbal agreements, but by law, all employees, whether part-time or full-time are entitled to be provided with contractual terms setting out the main particulars of their employment.  The law currently allows an employer two months to provide the written particulars and this can often lead to employers delaying the issue of the terms – sometimes until after the period of employment has ended. 

Furthermore, under Section 38 of the Employment Act 2002, unless an employer can demonstrate that there are exceptional circumstances, employees could be entitled to an award of between two and four weeks' pay if their employer fails to provide them with a written statement of initial employment particulars or of any changes to their terms of employment.  

However, this right only applies, if the employee has successfully brought another substantive claim such as any detriment in relation to National Minimum Wage, breach of Working Time Regulations, unfair dismissal etc.

Background

In the case of Stefanko and others v Maritime Hotel Ltd, at the Employment Tribunal (ET) all the claimants had succeeded in their claim for automatic unfair dismissal, and two of the claimants received an increase in their award under Section 38 of the Employment Act 2002 as they had more than two months continuous service.  However, the ET failed to increase the award to one claimant, Mrs Woronowicz, because she had only been employed for six weeks by Maritime Hotel Ltd.

Ruling

The Employment Appeal Tribunal (EAT) confirmed that as Mrs Woronowicz had worked continuously for at least one month she was entitled to receive a contract of employment and the increased award.  Section 2(6) ERA says that the right to a statement of employment particulars exists even when an individual’s employment ends before the 2 months are up.

It should be noted however, that this is due to be repealed by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 as with effect from 6th April 2020, every new employee will have the right from day one.   See our recent news articles:

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Implications

All employers need to be fully aware of their obligations and put plans in place to ensure they comply with the Good Work Plan.

Aspire comment

At Aspire we can get your HR house in order to ensure you meet these obligations when they take effect in April 2020. Why don’t you give us a call in the New Year to discuss how we can help on 0121 445 6178 or email enquire@aspirepartnership.co.uk