From 6 April 2020, important changes were made to the requirement to provide a written statement of particulars of employment.
Prior to this date, employers had to provide employees whose employment was to continue for more than one month with a written statement of certain terms of their employment. This had to be provided within two months of their employment.
The changes mean that the requirement to provide a written statement of particulars applies to “workers” as well as “employees.” In addition, the employee or worker will now need to be given the statement on their first day of starting work rather than within 2 months regardless of how long they are employed for.
For existing employees, there is no need to automatically issue an updated written statement of particulars. However, if after 6 April 2020, changes are made to terms and conditions this will trigger an obligation to issue an updated written statement of particulars of employment which will need to be compliant with the new statutory requirements.
The particulars must currently be provided in a single document and contain certain information which includes the names of the employer and employee, the employment start date, the place of work, hours of work and pay information.
Employers will need to make sure that when preparing their principal and supplemental statements, they do not inadvertently make something a contractual benefit when it should not be. For example, in relation to training provided by the employer or enhanced maternity pay. This could have costly consequences for the employer.
In addition, it is not clear whether details of flexible benefit schemes need to be included in the principal statement. In these schemes, many of the benefits are ‘optional’ or ‘pick-n-mix’ and really all the employer is providing is access to the scheme and the option to sacrifice part of pay to receive a different benefit instead. Those benefits are often provided by third parties. Subject to guidance being published, it is not clear whether all these various benefits will need to be listed in the statement.
Our view is that until further clarification is given, the statement should include full details of any benefits provided automatically and refer to the other optional benefits under the heading of the flexible benefits scheme and refer them to the scheme itself for full details.
Enforcement and remedies
From 6 April 2020, an employee or a worker may make a complaint to an employment tribunal where an employer fails to provide a section 1 statement or provide an inaccurate or incomplete statement. A Tribunal can award up to the 4 weeks’ pay for failure to provide particulars subject to the statutory cap.
However, it should be noted that compensation is not available in freestanding claims for failure to provide the statement of written particulars. Instead, only a declaration can be sought to confirm the particulars as they stand or to amend or substitute other particulars as the Tribunal considers appropriate.