March 16, 2020
Employment Law

A statement of employment particulars is a written form that an employer must give an employee when the employee first starts working for the employer. It sets out the bare bones of the employment contract (more on this below).

From 6 April 2020 the statement of employment particulars is changing – more detail will need to be included.

This has come about as a result of recent legislation:

  • The Employment Rights (Miscellaneous Amendments) Regulations 2019 and;
  • The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018.

Requirements prior to 6 April 2020

In order to understand the changes made it is useful to have a firm grasp on what is required prior to 6 April 2020.

Section 1 Employment Rights Act 1996 (ERA) details that employees who are to work for more than a month must be provided with a statement of employment particulars. This is sometimes referred to as a ‘section 1 statement’ and it must be produced within two months of the start of employment. It must include:

  • Names of employer and employee
  • Date employment commences
  • Date of any period of continuous employment
  • Hours
  • Pay and interval of payment
  • Holiday entitlement and holiday pay

The ERA does not require information regarding disciplinary procedure to be included within the same statement but it must also be made available to employees within two months of employment commencing.

Requirements post 6 April 2020

  • The right to a statement of employment particulars will start from day one of employment and those working for less than a month are no longer an exception.
  • The definition of those affected has changed from ‘employee’ to ‘worker’ which means those with looser service contracts (worker contracts) will, in some cases, still have a right to a section 1 statement.
  • There is more information required in a section 1 statement and this must be contained within a single document. Particulars to be added are:
    • Days of the week a worker is required to work.
    • Whether working hours or days may be variable.
    • Maternity leave and paternity leave entitlement.
    • Remuneration or benefits provided by employer.
    • Probationary period, including any conditions and its duration.
    • Any training provided by the employer which the worker is required to complete and any other required training in respect of which the employer will not bear the cost.
  • There are other particulars which are now required in the same principal statement and not a supplementary one:
  • The notice periods for termination by either side.
  • Terms relating to absence due to incapacity and sick pay.
  • Terms as to length of temporary or fixed-term work.
  • Terms related to work outside the UK for a period of more than one month.
  • The determination of an average week’s pay must be based on data from 52 weeks rather than 12 weeks or the number of complete weeks for which the worker has been employed.

Worker/Employee distinction

A section 1 notice, under the new requirements, is now available to both employees and workers.

This places the onus on the employer to determine whether their contract is with an ‘employee’ or ‘worker’ and tailor the information to suit either definition. A worker being loosely defined as someone obliged to provide work personally, but not carrying on business where the employer is the customer. Someone who is genuinely self-employed will obviously fall outside of this definition.

Disciplinary and grievance procedures as well as probationary periods would not normally apply to ‘workers’ and therefore specifying these in a worker’s statement could imply that they are an employee. It is important that employers do not sanction unwanted or potentially harmful rights to those normally defined as workers.

Existing Employees

As of 6 April 2020 an existing employee can request additional information now required in a section 1 notice at any time up to three months after the end of employment. An employee has no longer than one month to give such additional information.

It is also important to be aware that if new provisions are introduced and they fall within the remit of the new section 1 notice then existing employees should be notified of these changes. This is the case even when the existing employee has not, up until that point, requested a new section 1 notice.

Action to be taken by employers

Given that employers will be required to produce statements for employees on day one it will mean that full details of job offers will need to established from the outset.

Existing contracts will need to be reviewed. New contracts will need to be updated. The worker/employee distinction will need to be considered.

We are currently helping clients with the new rules – it’s quick and straightforward work. If you are an employer and would like our help please contact Imogen Finnegan or Marc Jones or call us on 0203 637 6374.