Contracts & Written Statements of Employment
Stillwells Solicitors LLP offered the Wessex LMCs and its constituents some generic employment law advice to be made available on this website.
Contracts & Written Statements
Ideally employers should agree a contract of employment with every employee. It is good practice to do so as this provides the basis on which the relationship between the two parties is governed. It can set out the employer’s expectations and rules in advance to guide the employee through their time of employment in a way that can avoid or minimise disciplinary and/or grievance situations arising and, as a result of this, help to safeguard the employer against successful claims to the Employment Tribunal.
It can also prevent the employer from paying out amounts that the employee should not be entitled to. For example if an employee leaves part way through the year and has already taken holiday, unless there is written provision for the employer to recoup the payment from the employee, it is not possible to withhold overpaid holiday pay. Similarly an employer may wish to protect its business by setting out appropriate restrictive covenants, to prevent an employee taking a large proportion of the business with them when they move to a new employer.
However it is often the case that the pressures of business or administrative errors result in a contract not being issued. Even if the employer is not able to follow good practice by issuing a full contract it is legally obliged to issue a written statement of the terms of employment within eight weeks of employment commencing.
There are certain items which must be supplied in the written statement:
- Names of the employer and employee.
- Date when the employment began.
- Date when the employee's period of continuous employment began.
- Job title or a brief description.
- Remuneration details, including pay scale or rate information, timing of payment and the method of payment.
- Terms and conditions relating to hours of work and the normal working hours.
- Terms and conditions relating to holiday entitlement including bank holidays.
- The employee's place of work or, where the employee is required or permitted to work at various places, an indication of this requirement plus details of the employer's address.
The following should also be supplied within two months of commencement, either in the written statement or in an accompanying document:
- Terms and conditions relating to incapacity for work due to sickness or injury, and details of sick pay provisions (including statutory and any company sickness scheme).
- Details of pensions and pension schemes.
- Details of period of notice to be given by the employer and the employee.
- The period for which any non-permanent employment is expected to continue or, if it is for a fixed term, the date when it is to end.
- Details of any collective agreements which directly affect the terms and conditions of employment, irrespective of whether the employee is party to these agreements.
Additional items are required if the employee is to work outside the UK for more than one month:
- Details of any procedure relating to dismissal, or the procedure applicable to the taking of disciplinary decisions.
- Specific details of the person to apply to if seeking redress for any grievance and the manner in which such an application should be made.
These are bare minimum requirements primarily to protect the employee.
Employers should also ensure that all contracts of employment include their disciplinary rules and procedure. These can be included specifically in the contract of employment or by reference to an external document. Ensure all employees are made aware of the procedure.
What happens if we do not provide a written statement of employment particulars?
If the employee requests the written statement and it is not provided, this may lead to an application to an employment tribunal who may:
- determine what the particulars should have been from the surrounding facts, and
- award compensation which will be at a level of either two or four weeks pay up to the current statutory minimum. However this particular type of compensation is a dependent right and can only be claimed if another claim, for example, unfair dismissal is also being pursued in the tribunal.
ACAS codes of practice
The Advisory Conciliation and Arbitration Service (‘ACAS’) provides guidance on employment issues. It publishes Codes of Practice which, although not legally binding, if not followed may be used by an aggrieved employee before an Employment Tribunal to demonstrate that an employer has not, for example, carried out a grievance process fairly.
Of necessity this guidance can only be of a general nature and your own circumstances will almost certainly affect the right approach. Do not use this guidance without proper legal advice.
Please refer to us as to what you need to do because of your specific situation.
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