by Tamara Barbeary & Sunny Rafaeli

Under Section 1 of the Employment Rights Act 1996, employers are under a legal obligation to provide employees with a written statement of employment particulars (sometimes called a “Section 1 Statement”) containing certain information about their terms and conditions of employment. Employers generally meet this statutory obligation by providing an employment contract containing the necessary details.

Changes made to the requirements for a S1 Statement of Employment Particulars

On 6 April 2020, the provisions of the Employment Rights Act 1996 relating to the right to receive a written statement of particulars changed:

• written statements must now be given to all workers (as well as employees). Prior to 6 April 2020, only employees were given this right;
• the right to a written statement has become a “day one right” in the sense that it must be provided on or before the date on which employment starts. Previously, employers were permitted two months to issue a Section 1 Statement; and
• written statements need to include more information than before.

What are the rights of workers and employees who were already working on 6 April 2020?

It is important to note that these changes are not retrospective – they only apply to new engagements on or after 6 April 2020. Therefore, employees who were already employed on 6 April 2020 are not entitled to the new rights and the former position applies to them. In other words, these employees are entitled to the right to receive a Section 1 Statement within the first two months of their employment and there is less information that they are required to receive in the Section 1 Statement. (NB: There are separate provisions for employees who commenced employment before 30 November 1993, which are outside the scope of this article).

However, workers who were already working on 6 April 2020 will be entitled to request a Section 1 Statement including the new, additional information and such requests must be complied within one month.

If there is a change to an existing employee’s terms of employment covered by a Section 1 Statement, the employer must give the employee a written statement containing particulars of the change/s in accordance with Section 4 of the Employment Rights Act 1996 (a “Section 4 Statement”) at the earliest opportunity and, in any event, within one month.

What are the employer’s obligations upon a name change or a TUPE transfer?

Where the employer changes their name but there is no change to any of the other Section 1 particulars previously issued to the employee or worker, the ‘new employer’ will be required to provide a Section 4 Statement to the employee or worker containing particulars of the changed name.

Where the employer’s identity has changed in circumstances in which an employee’s continuity of employment is not broken (i.e. where there is a transfer of undertakings – a TUPE transfer), the Section 4 Statement must also specify the date on which the employee’s continuous employment began.

Furthermore, if there are changes to any of the other particulars of employment, the ‘new employer’ must issue a new Section 1 Statement to the employee or worker.  

Remedies available to the employee if the employer does not comply with the legal requirements

If the employer fails to provide a Section 1 or 4 Statement or fails to provide a statement that meets the necessary requirements, the employee or worker can make a complaint to the Employment Tribunal for a declaration confirming what particulars ought to have been included or referred to in the statement.

Where an employee or worker also has a successful substantive claim (such as unfair dismissal or discrimination) and they are able to show that they were not given a compliant written statement, they could also claim compensation. Where compensation is available, it will between 2 and 4 weeks’ pay, capped at the statutory rate.

We would advise employers to ensure that they understand the current requirements, review contracts of employment, policies and procedures and carefully consider the status of their employees and workers. Notwithstanding the legal requirements, there are good business reasons for employers to ensure that terms are clearly set out and understood.

Click here to access our simple checklist designed to help employers navigate the legal requirements.

DISCLAIMER: The content of this article has been prepared for informational purposes only. The content does not constitute legal advice nor does it give rise to a solicitor / client relationship. Specialist legal advice should be taken in relation to specific circumstances.

If you do require specific assistance in relation to any of the above issues or any other employment related matters, please contact our specialist team here at Lennons.