The general rule of thumb is that an employment contract or statement of written particulars need only be issued within the first two months of employment.
For this reason, many employers will hold off dealing with the additional administrative work until such time that they are confident that the employee will continue beyond the two months. However, a recent case has emphasised the importance of complying with the legal requirement set out in the section 1(2) of the Employments Right Act 1996 (ERA) in those early stages.
An employee’s right to a contract of employment
In Stefanko and others v Maritime Hotel Ltd, one of the claimants was only employed for 6 weeks. She complained of a failure to provide a statement of employment particulars and a payslip. She subsequently succeeded in a claim for automatically unfair dismissal, but the Tribunal did not increase the award as a result of the Company’s failure to provide a written statement of particulars.
The EAT, however, concluded that Section 2(6) ERA indicates that the right to a statement of employment particulars exists even if a person’s employment ends before they reach 2 months’ employment. They set out that the claimant was entitled to such a statement and as a result, an increased award.
It should also be noted that whilst there is currently an exception to the right for employees who work less than 1 month, this is due to be repealed in April 2020 at which point every new employee will have the right to a statement from day one.
With this in mind, it may be time to review your processes to ensure that written statements and contracts are issued either before or at the point of commencement of employment. Even more importantly, if you don’t have such employment documentation or it’s out of date, now is the time to get things in order.
Our consultants at EML are experts in drafting legally compliant contractual documents which are tailored to your business and so offer maximum flexibility. Contact us on 01942 727200 to discuss how we can help.