Is an employer legally obliged to put the contract of employment in writing?
Although there is no legal obligation for a contract of employment to be in writing, under the Employment Rights Act 1996, section 1(1), employers are under a statutory obligation to put certain key terms of employment in writing in what is known as a written statement of employment particulars.
This statement sets out the main terms and conditions of the person’s employment and, although it is not a contract, it provides good evidence of the terms of the contract as seen by the employer.
When should employees receive their written statement of employment particulars?
Employees must be given their statement within two months of starting work, except where their employment continues for less than one month.
Where an individual works for a month or more, the statement should be provided even if their employment terminates before the end of the two-month period.
Does this apply to an employee working a few hours a week on a short-term contract?
A Yes, any employee in employment lasting for one month or more must be given the statement of written particulars within two months of starting work. The right to a written statement applies to part-time as well as full-time employees irrespective of the number of hours worked.
Must all the required information be provided in one document?
No. However, certain information must be provided in a single document known as the principal statement. The principal statement must include:
- the names of the employer and employee
- the date when the employment began
- the starting date of the employee’s period of continuous service
- the scale or rate of remuneration and how it is calculated
- the intervals at which remuneration occurs
- any terms and conditions relating to hours of work
- entitlement to holiday, including public holidays and holiday pay
- the employee’s job title or a brief description of their work
- the place of work or, where they work at various places, an indication of this and the employer’s address.
What can an employee do if their employer fails to provide a written statement?
Where the employer does not provide a written statement of employment particulars or provides one that does not comply with the requirements, the employee may refer to a tribunal to determine what particulars ought to have been included or referred to in the statement.
Once the tribunal has determined this, the statement will be deemed to have been given to the employee by the employer in accordance with the tribunal’s decision. There is, however, no financial compensation for a stand-alone claim.
Are there any circumstances in which financial compensation can be awarded?
Yes. Under the Employment Act 2002, section 38, which came into force on 1 October 2004, if an employee brings a separate specified claim against the employer and is successful, where there is also a breach of the written particulars requirements, the employee can also claim compensation for this breach.
The employer will be ordered to pay the employee two weeks’ pay or, if it is just and equitable in the circumstances, a higher amount of four weeks’ pay. For these purposes, the maximum amount of a week’s pay is currently 280. If there are exceptional circumstances where it would be unjust and inequitable to make an award against the employer, none will be made.
The separate claim must be one specified in the Employment Act 2002, Schedule 5. The list includes both unfair dismissal and equal pay claims.
Are employers required to inform employees of changes to their written statement?
Yes. If any change has been made to the information in the statement, the employee must be informed in writing within one month of the change.