Changes to the statement of employment particulars – do you know the small print?

The Good Work Plan was announced by the Government on 17 December 2018 and it takes forward almost all of the recommendations of the Taylor Review. Many of the Regulations implementing the Good Work plan were made between December 2018 and March 2019.

For more details about the range of recommendations set out in the Good Work Plan please see our earlier article.

Under the Good Work Plan, from 6 April 2020, every new employee and worker will have the right to the current statement of written particulars from day one of their contract. However, not everyone is aware of the new requirements in the statement and the effect on “workers” as opposed to “employees”.

The implications for employers regarding the new statement of written particulars are significant but many of the finer details have gone under the radar.

What are the current requirements?

Under section 1 Employment Rights Act 1996 (ERA) employers have to provide employees whose employment is to continue for more than one month with a written statement of certain terms of their employment. The “section 1 statement” or “written particulars of employment” must be given within two months of employment commencing. However, the information can in fact be given at different times, provided it is all given within the two months.

Certain information however, must be provided to the employee in a single document. This includes the names of the employer and employee, the date employment commences and the date of any period of continuous employment. The statement also has to include details about hours of work and pay and the interval of payment as well as holiday entitlement and holiday pay.

Other information, such as information about a disciplinary procedure, can be given in another statement or reasonably accessible document.

What are the new requirements?

The details are set out in:

• The Employment Rights (Miscellaneous Amendments) Regulations 2019
• The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018

Both are effective from 6 April 2020 and some of the key provisions are as follows:

• Converts “employee” to “worker” which means that “workers” as well as “employees” have the right to a section 1 statement.
• The right is from day one of starting work and there is no longer an exception for jobs lasting less than one month.
• There are additional requirements for the section 1 statement and note that these must be contained in a single document (not instalments). These additional particulars are:
  • The days of the week the worker is required to work and whether working hours or days may be variable, with details of how they may vary.
  • Any entitlement to paid leave, including maternity leave and paternity leave.
  • Any other remuneration or benefits provided by the employer.
  • Any probationary period, including any conditions and its duration.
  • Any training provided by the employer which the worker is required to complete and any other required training in respect of which the employer will not bear the cost.

• There are particulars that may currently be included in a supplementary statement but which will have to be given in the principal statement:
  • The notice periods for termination by either side.
  • Terms relating to absence due to incapacity and sick pay.
  • Terms as to length of temporary or fixed-term work.
  • Terms related to work outside the UK for a period of more than one month.

• Finally, although not part of the section 1 statement changes, The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 make an important change to reference periods in relation paid annual leave. They amend regulation 16 of the Working Time Regulations 1998 to increase the reference period for determining an average week’s pay (for the purposes of calculating holiday pay where variable remuneration or no normal working hours) from 12 weeks to 52 weeks, or the number of complete weeks for which the worker has been employed.

What do the changes mean for employers?

Replacing the word “employee” with “worker” for these statements seems straightforward, but it will mean employers having to clearly identify who are “workers” (i.e. obliged to provide work personally, but not carrying on a business where the employer is the customer) and who are genuinely self-employed. Although sometimes a grey area, employers will have to address any status issues straightaway in order to provide “workers” with a statement.

Additionally, disciplinary and grievance procedures and probationary periods, for example, would not normally apply to “workers”. Ironically, to specify these in a worker’s statement would actually point towards them being an employee. Whilst “workers” have a right to be accompanied at disciplinary and grievance hearings, the ACAS Code of Practice only applies to employees. Hopefully, guidance will clarify what employers should say where they do not apply.

The requirement to produce statements on day one (with certain exceptions to be provided within two months) will mean employers getting full details of the job offer established from the outset and ensuring everything is clearly communicated, especially where managers are conducting recruitment negotiations and another department is issuing the statement.

In relation to “existing employees” employers do not have to give “existing employees” (those whose employment started on or after 30 November 1993 and before 6 April 2020) the additional information set out above as a matter of course. However, an “existing employee” can request a section 1 statement on after 6 April 2020 at any time up to three months after the end of their employment. In such cases employers are bound to give the employee the statement including the additions set out above no later than one month after the request.

It is important to note that if an existing employee has not requested a section 1 statement after 6 April 2020, but there is a change, including to the new provisions which were not in that employee’s section 1 statement, employers have to notify the existing employee of the change. For example, no mention is made of a certain benefit, or training requirement by the employer, but the employer makes a change. This would be something that would have to have been included for new employees, and any change notified. Significantly, the change has to be notified to existing employees as well.

What should employers be doing now?

• Ensure that the April 2020 changes are on your radar.
• Carry out contract reviews.
• Remember that the changes have a particular impact for new joiners.
• Ensure you know what to do when existing employees ask for a new-style statement on or after 6 April 2020.
• Prepare contracts that reflect what must be given in one go and include the new additional requirements.
• Review employee/worker status.

As can be seen, the April 2020 changes to the statement of employment particulars impact on contract reviews, recruitment of new staff and even existing employees. There are many potential pitfalls that employers need to be aware of. In particular, employers will need to make sure that adding in some of the new particulars does not inadvertently make something a contractual benefit. Very careful drafting is needed to avoid creating unintended contractual obligations, for example in relation to training provided by the employer or enhanced maternity pay. Getting it wrong could have costly and long-term consequences.

Blake Morgan’s Employment team has extensive experience of reviewing and preparing contractual documentation and advising on employment status issues. Please do not hesitate to contact a member of the team or your usual Blake Morgan contact if you would like assistance.