Following the Taylor Review in July 2017 and the Good Work Plan published in December 2018, critical changes are being made to the rules on section 1 statements from 6 April 2020. These will apply to any person starting work on or after the 6 April 2020. Existing employees can also request a new section 1 statement.
Section 1 of the Employment Rights Act 1996 (ERA) sets out the minimum information that an employer must give an employee in relation to their working terms and conditions. Section 1 statements are generally given in the form of a contract of employment.
The key changes are as summarised below.
Extension of section 1 rights to workers
The obligation on employers to provide a section 1 statement currently extends to all employees. The new rules require that employers provide a section 1 statement to workers as well as employees. This is likely to require the creation of a new and more detailed worker contract for employers who engage workers.
New particulars to be included in all section 1 statements
For new joiners on or after 6 April 2020, the section 1 statement will need to contain particulars of the following additional pieces of information:
- Working days of the week, whether the working hours are variable and how any variation will be determined;
- Any other paid leave (holiday is already one of the requirements of section 1) ;
- Other benefits provided by the employer (not already included in the statement);
- Probationary period – duration and conditions; and
- Any entitlement to training provided by the employer, any part of that training which the employer requires the employee to complete and any other training that the employer requires the employee to complete, but does not pay for.
If there are no particulars to be given (for example, there is no right to a probationary period, no right to training or no right to other benefits), then this must be specified in the section 1 statement.
Reasonably accessible document
The ERA allows a limited number of aspects of the section 1 statement to be given in another reasonably accessible document, for example in an employee handbook or Intranet (provided this is referred to in the section 1 statement). This will include, from 6 April 2020:
- terms relating to incapacity and sick pay;
- any paid leave entitlement (such as maternity and paternity leave);
- particulars of training provided by the employer;
- pension and pension schemes; and
- information about disciplinary and grievance procedures (although certain information must be given in the section 1 statement).
All other section 1 particulars not listed here are, therefore, technically required to be included in the written section 1 statement. Controversially, this includes the new requirement to give particulars of “any other benefits provided by the employer”. Strictly speaking, these should all be specified in the section 1 statement (not in a reasonably accessible document such as a handbook). Best practice is therefore to give as much detail as possible about benefits in the section 1 statement itself. As it is unlikely to be possible or useful to give complete details of all benefits in the statement, we suggest listing the benefits as completely as possible and then referring the employee/worker to a handbook for the criteria/ policy. If benefits regularly change, it may be most practical (although not strictly compliant) to list examples of the benefits and refer to the relevant benefit scheme for details.
A reasonably accessible document should genuinely be accessible to all employees and workers, including those who work offsite, from home or do not have access to the intranet.
Section 1 statement to be given on day 1
Currently, employers are obliged to provide the list of information set out in section 1 within two months of the employee commencing employment. After 6 April 2020, the majority of the section 1 particulars must be provided on or before the date on which employment starts (i.e. they become day 1 rights).
There are a limited number of exceptions where information can still be provided in a supplementary statement within 2 months of the start of employment and can be given in instalments. These exceptions include:
- particulars of pensions and pension schemes;
- collective agreements;
- any training entitlement provided by the employer (not including mandatory training, even if paid for by the worker); and
- a note giving certain information about disciplinary and grievance procedures.
It follows that everything else under section 1 must be provided in a single statement, subject to the permitted exceptions for reasonably accessible documents.
No minimum service requirement
Currently, employers are obliged to provide employees with a section 1 statement only where the employee’s employment is to continue for more than one month. After 6 April 2020, there will no longer be a minimum service requirement and all workers will have a right to a written section 1 statement.
Employees and workers who started before 6 April 2020
The changes to section 1 statements set out above will only apply to those starting work on or after 6 April 2020. The existing rules will continue to apply to other employees and workers, subject to some transitional provisions summarised below.
Existing employees (those who started work between 30 November 1993 and 5 April 2020) may make a request for an up-to-date section 1 statement on or after 6 April 2020. They can do this either during their employment or within 3 months of the termination of their employment. The employer must provide a compliant section 1 statement within one month of that request. Employees can only make one such request.
There are similar rules in place for employees who started work before 30 November 1993.
It should be noted that the new rules requiring the provision of a section 1 statement do not apply to existing workers who started work before 6 April 2020. Such workers also do not have a right to make a request for a compliant section 1 statement as existing employees do.
Changes to particulars after 6 April 2020
Currently, employers must give a written statement giving details of any change to any of the required statutory particulars at the earliest opportunity and no later than 1 month after the change.
If on or after 6 April 2020 there is a change in any of the particulars which are required to be provided to employees pursuant to the updated section 1, the employer must notify existing employees of the change (if such employee has not previously requested an up-to-date section 1 statement).
No change in weak employee remedy
Under the existing law, employees can only bring a tribunal claim for a failure to provide a section 1 statement (or a failure to provide an accurate or complete statement) if they are also bringing another specified claim in the tribunal (including unfair dismissal claims, discrimination, detriment, deductions from wages, working time and breach of contract claims). A freestanding claim cannot be brought. If the employee is successful in tribunal for one of the listed claims and the employer is in breach of section 1 at the time the claim is brought, the tribunal can make an award. The compensation for breach of section 1 is capped at four weeks’ basic pay, currently £2,100. As part of the government consultation, there was consideration as to whether there needed to be a stronger remedy in place. However, no changes are going to be made on this point in April 2020.
Comment
The idea behind the Good Work Plan was to make the section 1 statement useful to employees and workers. Therefore, the interpretation of the new provisions should perhaps err on the side of providing as much clarity as possible about such new items as benefits, training and leave. Having said this, the employee remedy for a failure to comply is so weak, that employers may choose to be pragmatic in complying with the letter of the law, particularly where full details of benefits and training can be found in a handbook or on the intranet.
Frances Rollin