Employment Law Update - Written statement of particulars


25 January 2019

The Employment Appeal Tribunal (EAT) has considered whether an employee who was employed for less than two months was entitled to be provided with a written statement of particulars of employment.

Stefanko and others v Maritime Hotel Ltd and another, UKEAT/0024/18

Facts

The three claimants were all Polish nationals employed as waiting staff at a hotel. They were all dismissed after complaining about persistent shortfalls in their wages, late payment and falsification of wage slips. None had been provided with a statement of the particulars of their employment, as required under section 1 Employment Rights Act 1996 (ERA).  

On the termination of their employment, the claimants brought various claims against the respondents, including unlawful deductions from wages, compensation for failure to provide a section 1 statement, and race discrimination. Most of their claims succeeded, but one of the claimants failed in her claim for breach of section 1 ERA on the grounds that she had only been employed for six weeks. The tribunal also dismissed the complaint of direct race discrimination.

Employment Appeal Tribunal decision

The second claimant’s appeal against the tribunal’s finding that there had been no breach of section 1 ERA succeeded.

Under section 1, a written statement must be provided not later than two months after the beginning of the employment. It does not apply to individuals employed for less than one month. However, the tribunal had failed to take into account section 2(6) ERA, which states that a statement must be given even if the individual’s employment ends within the period of two months provided under section 1. Even though the claimant’s employment ended after a period of six weeks, she was still entitled to be provided with a statement.

The race discrimination claim was remitted back to the tribunal to be reheard.

Consequences

The EAT pointed out in the judgment that the rights provided under the ERA represent the minimum floor of legal rights, and it is best practice for written particulars to be provided as soon as possible to protect both parties, and in order to minimise risk of ambiguity or misunderstanding of the terms.

Under the Government’s recent Good Work Plan, it has committed to introducing a new right for all workers (in addition to employees) to be provided with a written statement of terms from day one of employment. This is expected to take effect from April 2020. 

 

The content of this article is for general information only. For further information please contact Liz Stevens or a member of Birketts' Employment Law Team.

This article is from the January 2019 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2019.

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