Clarification by Employment Appeal Tribunal of employers' obligations to provide written particulars of employment

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27 December, 2018

The EAT in Stefanko and others v Maritime Hotel Ltd held that an employee is entitled to a statement of particulars of employment even if they have worked for less than two months, provided they have completed one month of continuous employment.

Section 1(2) of the Employment Rights Act 1996 sets out an employee's right to receive a written statement of employment setting out the main terms of their employment, whether they work full or part time. Employers are currently provided with a two-month window to provide the written particulars. Pursuant to section 38 of the Employment Act 2002, unless an employer can demonstrate exceptional circumstances, an employee can be entitled to an award of between two and four weeks' pay if the particulars are not provided. However, this claim can only be made by an employee if another substantive claim is made; such as a claim pursuant to the Working Time Regulations or in accordance with national minimum wage legislation.

In this case, the Claimants were employed as waiting staff by the Maritime Hotel. They all had relatively short periods of employment of a few months. Ms Woronowicz, for example, was only employed for 6 weeks. She had brought a successful claim for unfair dismissal and had complained of a failure to provide either a payslip or statement of employment particulars.

At first instance, the employment tribunal declined to increase her award pursuant to s.38 of the Employment Act 2002 as she did not have 2 months' continuous employment (being the amount of time provided to employers by section 1(2) of the Employment Rights Act 1996 to provide particulars of employment). She appealed to the EAT who held that the Tribunal's decision was incorrect.

Section 2(6) Employment Rights Act 1996 states that the right to a statement of employment particulars exists even if a person's employment terminates before the expiry of the two month time period provided for in s.1(2). Ms Woronowicz was therefore entitled to a statement of particulars, and as one had not been provided she was entitled to an increased award pursuant to s.38 of the Employment Act 2002.

Currently there is an exception to the right for employees who work for less than 1 month. However, this is set to change further to The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 with effect from 6th April 2020. From then every new employee will have the right from day one as set out by the government in its "Good Work Plan" following the Taylor Review.

If you have any queries regarding contractual employment terms, or would like further advice regarding the proposed changes to employment law following the government's "Good Work Plan" please contact our Employment and HR Team by telephone on 0333 207 1135. Alternatively, send your enquiry to us through our online contact form.

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