3. Written details that must be provided

Although a contract of employment does not have to be in writing, an employer must provide an employee with certain details of their employment as set out in Section 1 of the Employment Rights Act 1996 (ERA 96). The details are referred to as the written statement of employment particulars.

This right applies to employees only, as defined by the ERA 96, so does not apply to someone who works under a contract for services (see Chapter 2 for definitions of these terms).

The effect of the written particulars

Although the written statement of particulars contains details of the kind that you would expect to find in a contract of employment, the statement is not a contract. It will be strong evidence of the terms of the contract but will not be conclusive. This means that an employee can argue that the details it contains are incorrect, if s/he can produce other evidence that contradicts it. It is also possible for an employer to do this, but much harder to prove because it was they who had written it, as the High Court found in Lee and others v GEC Plessey Telecommunications [1993] IRLR 383.

What details must be provided?

A statement of initial employment particulars must be given to the employee no later than two months after the start of their employment. It must specify:

• the names of the employer and employee;

• the date when the employment began; and

• the date on which the employee’s period of continuous employment began.

The statement must also include the following particulars, although some of these can be given in separate documents up to a week before the above particulars are provided:

• the rate of pay or the method of calculating it;

• the intervals at which it is to be paid;

• the hours of work;

• entitlement to holidays, including public holidays and holiday pay;

• terms relating to sickness or injury, including provision for sick pay;

• terms relating to pension (unless the employment is by a body or authority where pension terms are governed by separate legislation);

• the length of notice that both employee and employer are required to give to terminate the contract of employment;

• the job title or a brief description of the work for which the employee is employed*;

• if the employment is not intended to be permanent, the period for which it is to continue or the date when it is to end;

• the place of work*;

• any collective agreements that directly affect the terms and conditions of employment;

• if the employee is required to work outside the UK for more than a month, the period for which he or she is to work outside the UK, the currency in which he or she is to be paid and any additional remuneration or benefits to which he or she is entitled, and details relating to his or her return; and

• details of the grievance and disciplinary procedures.

The particulars marked with an asterisk (*) must be provided in a single document. If the employee is required to work outside the UK for more than a month, they must receive the written particulars before they go.

Terms relating to sickness absence, sick pay and pensions can be provided in a separate document as long as the employee has reasonable access to it, and the written statement must refer to that document. The information can be given in a written contract of employment, a letter of engagement or a separate written statement.

If any of the particulars do not apply, then the statement must specify this (for example, if there is no company pension scheme, the statement must say this). Where there is a change to any of the particulars, the employer must provide the employee with a written statement setting out the changes within one month.

Enforcing the right

If an employer has not provided a written statement or the statement does not meet with all the requirements, the employee can refer the matter to an employment tribunal to determine what particulars should have been included under Section 11 ERA 96. They can do this while they are still employed or within three months of their employment ending (or at a later date that a tribunal considers to be reasonable if it was not reasonably practicable to refer it within that time).

The employer can also refer the matter to the tribunal for it to determine what particulars should have been included.

The tribunal can either confirm the particulars that have been provided, amend them or substitute other particulars. The statement as decided by the tribunal will then be deemed to have been given by the employer. A tribunal cannot amend the terms that have been agreed — it can only make sure that the written statement accurately reflects those terms. If there is a dispute about the terms that have been agreed then this has to be settled by the ordinary courts.

Compensation

An employee may well have a claim for compensation arising out of an employer’s failure to provide a complete statement of terms and conditions within two months of the individual starting work, or more commonly, a failure to provide an updated statement of terms and conditions. However, that claim is not a stand-alone one. In other words, an employee needs to bring such a complaint in conjunction with a substantive tribunal claim. The types of substantive claim to which a written statement complaint must piggy-back on, are listed in schedule 5 of the Employment Act 2002. Currently they are as follows:

• equal pay;

• sex, race or disability discrimination;

• unauthorised deductions and payments;

• detriment in employment under Section 48 ERA 96;

• unfair dismissal;

• redundancy payments;

• detriment in relation to national minimum wage; and

• breach of the Working Time Regulations.

If the tribunal finds in favour of the employee and their employer has not provided the statement, they may award between two weeks’ and four weeks’ pay (the amount of a week’s pay being subject to the statutory maximum in force at the time).