All employees are currently entitled by law to a written statement of particulars of their employment (often called a 'section 1 statement'). In many cases employers meet this by setting out the necessary particulars in the employees contract of employment. From 6 April 2020, employers will need to ensure that new requirements relating to these particulars are reflected. Existing employees may also request an updated statement to reflect the new requirements (and which must be provided within one month of such request).
From 6 April 2020, the requirement to provide a section 1 statement also extends to workers.
What new particulars are required for employees from 6 April 2020?
The document used to set out the required particulars (which for most employers will be the contract of employment) will need to be amended to reflect the following:
|Hours of work||As well as details of normal working hours, employers must also provide particulars of the days of the week the employee is required to work and whether or not these hours/days are variable. Where they are variable, particulars are required of how they vary.|
|Benefits||The statement of particulars must now include details of all benefits an employee is entitled to, including non-contractual benefits|
|Probationary period||The statement must include details of any probationary period including any conditions relating to it and its duration.|
|Training||Particulars must be provided of:
An employee must also be provided with details of any other training entitlement although the details do not need to be in the statement itself. This information can also be provided within 2 months of commencement of employment rather than day 1.
|Any other paid leave (other than holiday)||
The statement of particulars must state where information on 'paid leave' can be found. This is already the case in respect of sick leave and pay but the new requirements look to extend this to other paid leave, such as presumably maternity, paternity, adoption and shared parental leave and other more discretionary paid leave such as jury service, compassionate leave etc.
Specific details relating to holiday entitlement must still be included in the main statement of particulars itself.
Where there are no particulars relating to a specific requirement, this should be stated.
Employers should note that from 6 April 2020 these particulars must be provided on or before day one of employment (there are a couple of limited exceptions). Where an existing employee requests an updated statement, an employer will have one month to comply.
What do employers need to do now?
We are awaiting government guidance but employers should now:
- Review current template employment contracts and service agreements to ensure the necessary 'section 1' changes are made.
- Consider how the requirement to include all benefits in the statement will be approached, particularly those which are non-contractual. It may be unwieldly to set these out individually, particularly where a non-contractual flexible benefit scheme is provided. Whilst on a strict reading of the new statutory requirements these should be included in the employment contract where this is being used as the section 1 statement, given the practicalities and risk of inadvertently creating contractual rights, employers may wish to adopt a more hybrid approach. We will be happy to discuss this with you.
- Use the opportunity to carry-out some general house-keeping on your templates. Following statutory and case-law developments, now would be a good time to check that restrictive covenants, data protection and holiday pay provisions in particular are fit for purpose. Confidentiality and disclosure provisions should also be reviewed given the current #metoo climate and anticipated future statutory reforms around these.
- For workers, prepare a template written statement setting out all of the section 1 requirements (both existing and new). Given the distinction between workers and employees, it would be sensible to provide a statement distinct from that provided to employees. Not all section 1 requirements will be relevant to workers and in each case wording should be included to confirm this.
Failure to comply with the section 1 requirements is not a separate legal claim in itself (although a declaration as to what the particulars of the section 1 statement should be can be sought). However, employees can piggy back a failure to provide an adequate section 1 statement onto another claim, and if successful be awarded an additional two to four weeks' pay (subject to the current statutory cap of £525 a week) for a breach of the requirements. Whilst on the face of it the risk of non-compliance in individual cases appears relatively low, employers should note that in a collective scenario, such as a failure to collectively consult on redundancy or a transfer of an undertaking, where a section 1 claim is added to a failure to inform and consult, the costs could become more significant. Employers will also need to take care on any future business or service transfer where they are under a statutory obligation to provide certain information, which includes the section 1 requirements, to the other party to ensure that they capture the relevant information.
Key information statement for agency workers
The 6 April 2020 also sees a separate obligation for employment businesses to provide a key information document for agency workers and which is intended to improve transparency of information for agency workers, particularly around pay. Like the new section 1 requirements set out above, this new requirement will only apply to agency workers who sign up to an employment business from 6 April 2020. Agency workers who are also classed as employees or workers will be entitled to both a written statement and a key information document.
If you would like to discuss a review of your current employment terms in light of recent developments and to receive our guidance note setting out the section 1 requirements and the changes coming into force in more detail please do contact us.