Changes to written statements of employment - are you ready for 6 April 2020?

On 6 April 2020 the relevant provisions of the Employment Rights Act 1996 relating to the right to receive a written statement of employment particulars will change.

We set out below the key elements which are changing and what employers should be doing to prepare.

Who is entitled to a written statement?

Currently, employees (whose employment is continuing for more than one month) have a statutory entitlement to a written statement of particulars which broadly sets out certain key information about the employee’s employment. In practice, the required information is usually included in the contract of employment. From 6 April 2020, this right will be extended to workers and there will no longer be an exemption in respect of employees employed for less than one month.

When must the written statement be provided?

Whilst currently the written statement of employment particulars must be provided to employees within two months of the start of their employment, from 6 April 2020, the majority of particulars will need to be provided to employees and workers on or before the beginning of their employment or engagement.

What must the written statement include?

The written statement currently must set out certain key information relating to the individual’s employment such as the name of the employer, the employment start date, hours of work, pay, job title, holiday and termination provisions, amongst others.

From 6 April 2020, certain additional information will also need to be provided, notably:

• whether there is a probationary period and if so, its conditions and duration;
• the days of the week the employee or worker is required to work and whether their working hours or days may be variable and if so, details of how they may vary;
• details of any training provided by the employer which the worker is required to complete, and details of any other required training for which the employer will not bear the cost;
• details of any other benefits (including non-contractual benefits) not covered elsewhere in the statement;
• terms and conditions relating to paid leave (other than holiday or sick leave) for example family leave, paid study leave and compassionate leave.

What form must the written statement take?

The majority of information which is required to be provided to an employee or worker must be provided to them in a single document. There are certain exceptions; some information, for example in relation to sick pay and procedures, disciplinary and grievance procedures, details of paid leave (other than holiday and sick leave) and training entitlement can instead be included in another reasonably accessible document (for example a staff handbook/intranet), provided the written statement sets out where the information can be found.

Notably, however, the information on benefits must be included in the written statement with no option in the revised legislation to refer staff to details available elsewhere. In practice this conflicts with many employers’ practice of referring to more detailed information held on a benefits portal or in a staff handbook. This will also create difficulties where benefits choices, their terms and providers are changed on a regular basis in practice meaning that staff will need to be provided with a revised statement on each occasion these are revised. Many employers may take a risk based approach and opt to be in technical breach of the statutory requirements by continuing with their current practice – see below for What are the consequences of an employer’s non-compliance?

What about employees and workers employed before 6 April 2020?

Employees, whose employment commenced on or after 30 November 1993 and before 6 April 2020, can request an updated written statement from their employer that complies with the new requirements. In addition, if on or after 6 April 2020 any changes are required to be made to an existing employee’s statutory particulars (including a change to any of the additional information referred to above that is required to be given to employees after 6 April 2020), the employer must notify the employee of the change at the earliest opportunity, and in any event no later than one month after the change. Different arrangements apply to employees who commenced employment before 30 November 1993.

Workers engaged before 6 April 2020 are not entitled to request a written statement, however, in practice, should changes need to be made to particulars on or after 6 April 2020, then new particulars will need to be issued, including to existing workers. In addition, if a worker’s contract terminates and they start working under a new contract on or after 6 April 2020, they would be entitled to receive a written statement.

What are the consequences of an employer’s non-compliance?

An employee, and from 6 April 2020, a worker, can bring a freestanding claim against an employer relating to a failure to comply with the provisions around written statements of particulars. An employment tribunal is only able to make a declaration as to the particulars they should have received from their employer and no award of compensation is available.

However, a monetary award is available where an employee (or from 6 April 2020, a worker) successfully brings a substantive claim, such as for discrimination, and at the same time they bring a claim in relation to their entitlement to written particulars. Even when successful, an employment tribunal is only able to award between two and four weeks’ pay and the cap on a week’s pay applies (from 6 April 2020 this will be £538).

Preparing for the changes?

• Review template employment contracts and offer letters, to ensure they include the information required by the new rules.
• Ensure that any non-contractual benefits included in the statement are expressed as such.
• Identify workers and consider which information should be provided to them as part of their written statement. Not all information applicable to employees will also apply to workers but where there are no details relevant to the required statutory particulars that fact must still be included in the statement, for example, if there are no disciplinary rules applicable to the engagement.
• Consider putting processes in place during the recruitment process to ensure that the written particulars are provided on or before day one of employment or engagement.