Some ‘particular’ changes employers should be aware of!

Some people call them “section 1 statements“, some call them “written particulars” and others call them “statements of terms.” Whatever you choose to call them, written statements of particulars of employment have been around in one form or another for over 40 years, and the current rules have been in place since the introduction of the Employment Rights Act 1996. Most employers have got used to them and know what information they have to include. However, those rules are changing in April next year, and it’s important that employers are aware of their forthcoming obligations.

What are the current rules?

Currently, employers are obliged to provide employees who are going to remain in employment with them for more than one month, with a written statement of certain particulars (details) of their employment, and other pieces of required information that can be provided separately from the principal document. Most employers cover the required information in a contract, and that is certainly what we would recommend, but the law only requires a statement. Currently, the written statement must be issued to the employee within two months of them starting their employment.

What is changing and when?

In the government’s Good Work Plan, published in December 2018, changes to written statements were proposed. It was subsequently announced that regulations have been put in place to bring the new law into effect for any person starting work on or after 6 April 2020.

The right to receive a written statement of particulars of employment will be applicable to both workers and employees for the first time, and will no longer be contingent on length of service.

As before, a written statement of particulars may be given:

• In the form of a statement, or as a letter of appointment or contract of employment
• Either before or after employment starts.

Under the new rules that come in from 6 April 2020, the majority of particulars will need to be provided in a single principal statement and will need to be given on or before their first day at work. An exception will apply in relation to information on pensions, collective agreements and any training entitlement, and this information will be required to be given be no later than two months after the beginning of employment/engagement.

Particulars that must be given in a single document (the principal statement)

The following information is required to be given in the principal statement:

• The names of the employer and employee/worker.
• The date the employment starts and the date the employee/worker’s period of continuous employment began.
• Pay (or the method of calculating it) and interval of payment.
• Hours of work, including normal working hours.
• Holiday entitlement and holiday pay.
• The employee/worker’s job title or a brief description of the work.
• Place(s) of work.
• A person to whom the employee/worker can appeal if they are dissatisfied with any disciplinary decision relating to them or any decision to dismiss them.
• A person to whom the employee/worker can apply for the purpose of seeking redress of any grievance and the manner in which any such application should be made.

From 6 April 2020, additional particulars must also be provided to all workers in the principal statement:

• The days of the week the worker is required to work and whether working hours or days may be variable, with details of how they may vary.
• Any entitlement to paid leave, including maternity leave and paternity leave.
• Terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay. This would cover requirements for self-certification, the delivery of medical certificates (and inspection by the employer’s doctor, if desired) and details of payment during absence (that is, statutory sick pay or any additional payments by the employer, including pension contributions, if applicable).
• Any other remuneration or benefits provided by the employer.
• Any 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. It should detail whether the training is mandatory and/or must be paid for by the worker.

Also, from 6 April 2020, the following particulars, which can currently be provided in a supplementary statement, must be given in the principal statement instead:

• 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.

Particulars that may be given in ‘another reasonably accessible document’

The employer can choose whether to put the following information in the principal statement, in supplementary statements or in reasonably accessible documents that are referred to in the section 1 statement:

• Terms relating to absence due to incapacity and sick pay.
• The notice periods for termination by either side.
• Information about disciplinary and grievance procedures (although some information must be given in the principal statement in any case).
• Terms as to pensions and pension schemes.

From 6 April 2020, an employer can also choose whether to include particulars of any training provided by the employer in a reasonably accessible document referred to in the section 1 statement.

Particulars that may be given in a supplementary statement

The following information is usually given in the principal statement. However, until 5 April 2020 it can instead be given in “instalments” by way of supplementary statements, at different times to the principal statement, as long as all the information is given within two months of employment starting:

• Terms related to work outside the UK for a period of more than one month.
• Terms as to length of temporary or fixed-term work.
• A note giving certain information about disciplinary and grievance procedures (although certain information must be given in the principal statement in any case).
• Details of any collective agreements directly affecting the employment.

From 6 April 2020, all the required particulars must be provided by the start date save for the following which may be given in instalments up to two months after the beginning of employment:

• Terms as to pensions and pension schemes.
• Details of any collective agreements directly affecting the employment.
• Details of any training provided by the employer.
• A note giving certain information about disciplinary and grievance procedures (although certain information must be given in the principal statement in any case).

The new requirements relating to written statements will not apply to employees whose employment started before 6 April 2020. However, from 6 April 2020, an existing employee (not a worker) may request from the employer a written statement of particulars complying with the new requirements. The employer will be required to provide it within one month. Employees may only request such a written statement once.

Where after 6 April 2020 there is a change in any of the employment particulars which are required to be given under the new rules, an employer must also give existing employees a written statement containing particulars of the change.

Key points for employers

• As you can see, there are a lot of changes, and the new rules probably mean it is a good opportunity to review your existing documentation (for both employees and workers) to check whether it will be compliant. Do contact us if you need any help with this.
• Although the main impact will of course be on terms for new joiners, the fact that existing staff will be able to request an amended statement means that it will be important to be prepared to answer questions from existing staff too.
• If these rules are breached, then as is the case now, an employee/worker will be able to bring an Employment Tribunal claim for a declaration of what their terms are. If they bring another successful claim (such as unfair dismissal) at the same time, then the Tribunal can also award them between two and four weeks’ pay (a week’s pay for this purpose is subject to the statutory cap, currently £525 per week).
• However, as we covered in our article earlier this year, an employer can potentially avoid liability so long as they provide the written statement before the employee/worker puts in their claim.
• The requirements of a written statement only cover the bare minimum terms, and there are many other provisions which we recommend employers include too. It is always best to ensure that you use documentation which properly reflects your organisation’s needs.