The Requirement to Provide a Written Statement of Particulars / Contract of Employment

What is the legal requirement?

Employees (not all workers) are entitled to a written statement of particulars of the most important aspects of their contract. Alternative documents may be used such as an offer letter, letter of engagement or contract of employment. 

The statement must be provided within two months of the employee’s start date. If the employee is to begin work outside the UK (for a period of more than one month) within the initial two month period then the statement must be given to them before they leave the UK to begin work.

It must be provided to all employees as long as they have continuous service of one month or more, even if they leave employment before the end of two months.

Why should you provide it in every case?

Although it is normally only where there is a dispute that the lack of written terms and conditions becomes a problem, it is a good idea to issue them to every employee. Apart from the fact it is a statutory requirement, below are some other good reasons reasons why:

• Failure to do so may lead to a tribunal award of 2 – 4 weeks’ pay in favour of the employee

• Clarity for both parties – avoiding disputes over implied terms

• Protection of confidential information

• Restrictive covenants are only enforceable if they are in writing

• Can protect a limit on the employer’s liability in certain circumstances if drafted correctly and kept up to date.

The absence or presence of an appropriate term in a contract of employment is often the determining factor in defending a tribunal case. Below are some recent illustrations of where an employer benefitted from having written terms.

Hammond v Dunnes Stores (Bangor) Ltd – the employer was not liable to pay a bonus as claimed by the employee as after examination of the contract of employment there was no term obliging the employer to do so.

Catherine Horgan v British Airways PLC and British Midland Airways Ltd (subsidiary of Lufthansa) – this case was a claim for unfair dismissal and discrimination under a number of heads. A key factor was the claimant’s place of work. This was determined by the tribunal’s consideration of the Claimant’s contract of employment and lead to a dismissal of all her claims.

What must it contain?

The Employment Rights Order Article 33 sets out the specifics required in a statement of particulars:http://www.legislation.gov.uk/nisi/1996/1919/part/III/crossheading/right-to-statements-of-employment-particulars 

In summary the requirement is to state:names of the employer and employee;

• date when the employment began;
• date on which the employee's period of continuous employment began;
• scale or rate of remuneration or the method of calculating remuneration;
• intervals at which remuneration is paid;
• hours of work;
• holiday arrangements;
• sick leave arrangements and payment;
• pensions and pension schemes;
• notice which the employee is obliged to give and entitled to receive;
• job title;
• whether the employment is permanent or otherwise;
• place of work or;
• any collective agreements which directly affect the terms and conditions of the employment; and
• if required to work outside the United Kingdom for a period of more than one month and any terms and conditions relating to that;
• disciplinary rules
• disciplinary procedure
• to whom grievances should be addressed and the process for that
• whether there is a contracting out certificate in force in relation to any pension
  

No particulars:

If there are no particulars to include relating to a particular item the document should state that fact eg: the employee shall not be required to work outside the UK for a period of more than one month.

Other documents:

Particulars of disciplinary, grievance and sickness arrangements can be quite lengthy and the legislation allows the statement of particulars to refer the employee to a separate document specifying these arrangements. The Employment Rights Order does stipulate that the document must be ‘easily accessible’ to the employee. This allowance also applies to provisions on pension and notice arrangements.

Changes to terms:

If there are any material changes to the items in the statement of claim the employer should give a written statement of any change within one month of the change. Again for the purposes of arrangements relating to disciplinary, grievance, sickness, notice and pensions the employer can refer the employee to an ‘easily accessible’, separate document.

Although the statutory requirement is to provide a written statement of particulars as above, a detailed contract of employment can provide the parties with clarity on probation, mobility clauses, employee benefits, protection of intellectual property and confidential information and restrictive covenants The standard list of particulars is no substitute for a well drafted, bespoke set of terms and conditions dealing with individual arrangements for each business which thereafter provides a constant source of reference for both parties.