In the UK, the beginning of April is always an important period for employment lawyers because the British Government and/or the Westminster Parliament typically introduce new laws which directly impact on people’s terms and conditions of employment.
There is no such thing as one document which contains all the terms of an employment contract – something that my students and members of the public have difficulty understanding at first. It is important to grasp from the outset that there are various sources of the employment contract which include, amongst other things:
- The written statement of the main terms and conditions of the contract (as per Section 1 of the Employment Rights Act 1996)
- Employee handbooks (e.g. available on employer’s intranet)
- Employer’s policies and codes of conduct (e.g. disciplinary codes)
- EU Laws, Acts of Parliament and statutory instruments (e.g. Employment Rights Act 1996, Equality Act 2010, TUPE Regulations 2006, Equal Treatment Directives)
- Judicial precedent and the common law (e.g. Walker v Northumberland County Council 1 AER 737)
Today new rules come into force about the written statement of the main terms of employment. Previously, only employees were entitled to receive such a document which had to be issued by an employer within 8 weeks of the commencement of employment (as per Section 1 of the Employment Rights Act 1996). Now, an employer must issue a written statement to both employees and workers from or before day 1 of their employment or engagement.
The written statement will contain important information about the contract of employment, such as:
- The employee’s name
- The employer’s name
- Date when employment commenced and period of continuous service
- The rate of pay and how often the employee is paid
- Working hours
- Holiday entitlement
- Sick pay entitlement
- Pensionable service and details of employer’s pension scheme
- Notice requirements
- Job title or brief JOD description
- Whether the job is permanent/temporary/fixed term
- The location of the employee’s place of work
- The existence of collective agreements and how they affect the contract
- Arrangements for working outside the UK (if relevant)
- Details of disciplinary and grievance procedures
Furthermore, as a result of today’s changes to the law, the written statement must also address the following matters:
- The hours and days of the week that the employee/worker must work for the employer and whether they can be changed and the mechanism for doing so
- Entitlement to any paid leave
- Entitlement to contractual benefits which have not already been addressed in the written statement
- Probationary periods (if relevant)
- Training opportunities provided by the employer
The legal status of the written agreement
The written statement is not the contract of employment itself because no single document could possibly encompass all the terms of such an agreement. There is nothing to stop the parties adopting the statement as the contract of employment, but it is important to understand that it can be varied or altered as a result of legislative changes, court decisions and collective agreements.
As of today, entitlement to leave for bereaved parents is being introduced; increases to the National Minimum and Living Wages come into force; and increases to a range of statutory payments are also taking place. With all of this going on, it would be very difficult – if not impossible – for any written statement to express the totality of the employment contract in any meaningful sense.
Failure to issue a written statement
Section 38 of the Employment Act 2002 gives employees the right to pursue an Employment Tribunal claim against an employer for failure to issue a written statement. This type of claim would usually be brought by an employee as part of another claim against the employer e.g. dismissal or discrimination claims. In such an instance, the employee would state on the Tribunal application (the ‘ET1’) that the employer had failed to issue written terms. It is always worthwhile submitting this type of claim as part of the bigger picture of the employee’s grievance because an Employment Tribunal could issue an award worth up to 4 weeks’ wages.
Any employee who is dismissed by the employer for requesting their statutory right to receive a written statement will have the right to pursue a claim for unfair dismissal in terms of the Employment Rights Act 1996.
An example of an extract taken from an ET1 form can be seen below:
The right to receive a written statement was, previously, a very important indication of a person’s employment status i.e. whether they had a contract of service in terms of Section 230 of the Employment Rights Act 1996 – as opposed to a contract for services.
In the leading House of Lords’ decision – Carmichael v National Power plc  IRLR 43, two women who were engaged on casual as required contracts as tour guides at the (now demolished) Blyth Power Plant in Northumberland were not entitled to receive written statements of employment because they were engaged under a contract for services. There was no mutuality of obligation between the parties in that National Power was not obliged to offer the women work and the two women, if offered work, were not obliged to accept it. With today’s changes to the Employment Rights Act 1996, the two women in Carmichael would now be entitled to receive a written statement.
A link to the UK Government’s website which provides (free) access to a blank template for employers to generate their own written statement can be found below:
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Copyright Seán J Crossan, 6 April 2020