The rules surrounding the provision of written particulars, which are complicated enough already, are set to get a whole lot more complicated. Come 6th April this year they will put a number of new duties in place on employers.
The changes are part of a general broadening out of rights to workers, a third category of employment status somewhere between freelance and employed.
We have no doubt that the upcoming changes will catch a large number of employers out, not least because they are not used to seeing any changes in the law while Brexit ties up legislators’ time. What was complicated, is now horrendously complicated in our view.
What are the key changes?
- The written statement of terms and conditions now needs to be provided from day one, except where they can be given in instalments (see below).
- The statement needs to be provided to all employees and ‘workers’ no matter how long they have worked (workers and very short term contracts were previously not covered).
- New items need to be included in a single document (which may now become very long indeed):
- days of week worked
- the method of working out what variable hours will be
- terms and conditions relating to paid leave other than the usual holiday and sick leave e.g. maternity and paternity leave
- details of any and all benefits whether contractual or not
- full details of any probationary period
- details of training provided
- details of any compulsory training and whether this won’t be paid for
- Existing employees (but not workers) can request an updated statement and must be provided ‘at the earliest opportunity’ and in any case within one month.
- Where changes are made, a statement of change must be given to the affected employee within the same time frame.
- Whilst there used to be difficulty over what needs to be provided in a single document and what can be referred to elsewhere, there is now an added category of terms which can be referred to in instalments.
What will need to be included in a nutshell?
The following need to be in one document (which can be the contract of employment itself). If there is no particular, the document must state this:
- names of employer and worker
- start date (of continuous employment if employee)
- rate and intervals of pay
- hours, normal hours and days of week
- precise calculations for holiday entitlement, including public holidays
- sick pay
- other paid leave**
- pension* **
- all other benefits
- notice periods
- job title or duties in brief
- details and conditions of probation
- place or places of work
- details of collective agreements*
- training entitlements and requirements, compulsory (and non-compulsory* **)
- details of any work outside the UK
- disciplinary and grievance procedures**
*These can be provided in instalments starting within 2 months of the employment
**Need to be referred to in the particulars but full details can be made readily accessible elsewhere.
The new provisions will be a major headache for employers, especially those who rely heavily on the use of ‘workers’. Additionally, all employers will need to audit their existing workforce, as well as their existing contracts and policies. Undoubtedly it will be easier just to give everyone updated contracts.
If the worker or employee isn’t happy with the particulars provided, they can make reference to an Employment Tribunal, who can make a declaration as to what the particulars should have been. This may be a convenient way for a claimant to bring a breach of contract claim, where they believe they have not been given what they are entitled, especially in respect of benefits, holiday and pay.
Alternatively, any failing on the part of the employer can be tacked onto another ET claim, in which case there will be award of two – four weeks statutory pay.
Where the terms are clear and agreed, the Tribunal will have little teeth where written particulars have been provided late.
However, the threat of a claim is enough to give the clever claimant, or truculent member of staff, plenty of opportunity to add some edge to any complaint they have about their terms of employment.