Written statement of employment particulars – new rules from April 2020

There has been a long-standing statutory obligation on employers to provide their employees with a written statement of employment particulars (sometimes called a “section 1 statement”). Employers have often met this obligation by providing an employment contract which includes the necessary details.

From this April, the statutory requirements will be changing and additional information must be provided. The duty is also being extended to all workers, not just employees. Workers are those who have contracted to do work personally for an employer but are not running their own business.

Employers must make sure they’re on top of the new rules and are providing the new-form statements to all workers engaged from 6 April 2020.

What is changing for employment particulars?

On 6 April 2020, the requirement for employers to provide a written statement of employment particulars (in accordance with section 1 of the Employment Rights Act 1996) is changing. The key developments to look out for are:

• Written statements will need to be provided to all workers. Currently only employees have this right.
• The right to a written statement will become a “day one” right. This means that any workers engaged on or after 6 April 2020 will be entitled to receive a written statement before or on their start date (only limited information can be provided after this point). At the moment this right only arises once an employee has one month’s service.  
• Written statements will need to include more information (set out below, with the 6 April changes highlighted in bold). While these changes do not apply retrospectively, from 6 April current workers will be entitled to request a written statement including the additional information. Employers will need to comply with these requests within one month.
• While these changes do not apply retrospectively, from 6 April current workers will be entitled to request a written statement including the additional information. Employers will need to comply with these requests within one month.

What information is required in the written statement?

The legislation distinguishes between information which must be provided in a single document and information which can be in a supplementary statement (to which the principal statement refers).

Information which must be provided in a single document

• Names of employer and worker
• Date employment or engagement begins
• For employees only: date of continuous employment
• Rate of pay and frequency (weekly, monthly etc.) of payment
• Hours of work (including normal working hours, days of week and whether hours/days are variable (and, if so, how they vary))
• Entitlement to holidays (including public holidays) and holiday pay
• Any other benefits (including non-contractual benefits)
• Length of notice of termination required from employer and worker
• Job title or brief description of work
• If applicable: Details of non-permanent employment or engagement (e.g. period of fixed-term contract)
• Any probationary period which starts at the beginning of the engagement, including conditions and duration
• Place of work and address of employer
• If the worker is required to work outside the UK for over a month: arrangements for working outside the UK (including period, currency of pay, additional pay and benefits and return terms)

• Any part of any training entitlement which the employer requires the worker to complete

• Any training which the employer requires but does not pay for

Information which can be provided in a separate document

• Sick leave and pay
• Any other paid leave
• Pensions and pension schemes (this can be provided within 2 months)
• Details of any collective agreements directly affecting terms (this can be provided within 2 months)
• Any other training entitlement (this can be provided within 2 months)
• Disciplinary and grievance procedures (this can be provided within 2 months)

What can employers do to prepare for section 1 statement changes?

Employers should be taking action now to prepare. We suggest you do the following:

• Review the employment status of individuals you are planning to engage. This is to determine whether these individuals will have worker (or employee) status, and will therefore be entitled to receive a written statement before or on their start date.
• Review your current template employment contracts and service agreements to highlight any amendments to be made before 6 April. This would be a useful opportunity to carry out a more general review of your templates to ensure that they are fit for purpose.
• Amend your template agreements to include the additional information. When doing this, you should take care to ensure that these amendments do not convert non-contractual benefits (such as a discretionary bonus scheme, or enhanced family leave) into contractual entitlements. There are different ways to achieve this, for example by including the additional information in a non-contractual annex to the template agreement.
• Amend or prepare a template written statement tailored for workers who are not employees. This template should, ideally, be distinct from the template used for employees. This is to avoid inappropriate language being included in the written statement for workers which inadvertently converts the worker into an employee. For example, probationary periods and disciplinary and grievance procedures will not usually apply to workers (but do apply to employees), and so language referring to these in a worker’s written statement will need to be carefully drafted. 

What happens if employers don’t comply?

Employees and workers will not be able to bring a freestanding claim for a failure to provide a written statement. However if an employee or worker brings a separate, successful claim in the employment tribunal, and they are able to show that they were not provided with a compliant written statement, they may be awarded an additional 2 to 4 weeks’ pay (subject to a statutory cap, currently £525/week and due to increase slightly on 6 April).

The penalty for breaching this requirement is quite small, although total costs might be significant if a large workforce all bring claims as part of some other litigation. The costs of accidentally converting a non-contractual benefit into a contractual one may, however, be significantly higher. It’s therefore important for employers to take time and care when updating template agreements in line with the new requirements.