Contracts – how late is too late to provide one?

Every employee whose employment is to continue for more than one month is entitled to a ‘written statement of employment particulars’, which must be given to them within 2 months of their start date. Most written statements of employment particulars are contained in a contract of employment, but that doesn’t necessarily have to be the case.

If an employee is not given a written statement, or the statement is incomplete or inaccurate, they can bring a claim in the Employment Tribunal to enforce their rights. However, although an Employment Tribunal has the power to make a declaration of what the terms of employment are, the employee can only claim compensation for the employer’s failure to provide the statement if they are bringing some other substantive claim (such as a claim for unfair dismissal) at the same time, and that other claim is successful.

Providing the employee succeeds in both claims, the Tribunal will make a minimum award of 2 weeks’ pay for failure to provide the written statement (the maximum award for this is 4 weeks’ pay), and for this purpose a week’s pay is subject to the statutory cap, which is currently £525.

A recent case dealt with the interesting question of how late an employer can provide the statement in order to avoid the employee having a claim.

In Govdata Ltd v Denton the Employment Appeal Tribunal decided that so long as the statement is provided to the employee before the claim is lodged, the employee won’t be able to claim compensation. This means that even if it is only provided after employment has ended, it would still not be too late.

As employees have to go through the early conciliation process before they can issue a formal Tribunal claim, employers who haven’t provided a statement previously could simply issue one at that stage to avoid being liable to pay compensation. This weakens the employee’s rights on this point considerably.

Whilst it is helpful for employers to know that a written statement can be issued late, it is still far better to issue it on time. In our view it is better for employers to set the terms out clearly before the employment relationship starts, as many of them will be terms that the employer may wish to rely upon.

It is also worth noting that, from 6 April 2020 (but only for workers or employees who start work on or after that date) the following will apply:

• the right to a written statement of particulars will extend to all workers, as well as employees
• there will no longer be a requirement for the employment to continue for a minimum of one month before a statement need be issued
• the majority of written particulars will need to be given on or before the day the employment starts – so it will become a ‘day one’ right, rather than applying after 2 months’ service.