Employment Law Speed Read – 23/04/19

Background

Under section 1 of the Employment Rights Act 1996 (ERA), employers are obliged to provide employees whose employment is to continue for more than one month with a written statement of their particulars of employment. This is often known as a “section 1 statement” or “written particulars of employment”. Currently, the statement must be given to employees no later than two months after their employment begins.

Although no freestanding claim for compensation is available for a failure to provide a section 1 statement, under s38 of the Employment Act 2002 (EA) an employee may be eligible for an award, or an increase to an award, where they have successfully brought one of the substantive claims, such as unfair dismissal. This is provided that at the time the claim is brought, the employer is still in breach of their duty to provide a section 1 statement.

Facts

The Claimant, Mr Denton, was employed by Govdata Limited (Govdata) from 1 December 2015 and was not given a s1 statement until 15 June 2016, much later than the two months required by s1 ERA. Mr Denton was dismissed in August 2016 and brought claims in the ET in November 2017 that were upheld. Mr Denton’s representatives applied to the ET to increase the award under s38(3) which was granted by the Employment Judge.

Govdata appealed on the basis that it had complied with its duty under s1 ERA prior to the commencement of the proceedings and was therefore no longer in breach of its duty.

Employment Appeal Tribunal

Govdata’s appeal was upheld by the EAT. The EAT held that Govdata had complied with their duty under s1 ERA, albeit late, but had complied with their duty prior to the commencement of proceedings. The EAT held that section 38(3) EA contemplates that a breach of s1 ERA may be remedied, and if it is remedied before the proceedings are brought, the power to order an increase in award will not be available. The EAT could not see any other sensible reason why Parliament would have included “when the proceedings were begun” in the legislation’s wording. Mr Denton’s award could therefore not be increased.

Comment

Whilst this case does not change the existing law, it is a useful case for employers to rely on where an employee is seeking an increase in compensation where they have given a s1 statement late but before proceedings have begun.

This case is also a helpful reminder of an employers’ duties regarding section 1 statements, particularly given the changes to section 1 statements that will come into force on 6 April 2020.

The changes to section 1 statements from 6 April 2020 are as follows:

• the majority of written particulars become a “day one right” and the majority must be provided in a single document;
• there will be no minimum service requirement;
• the entitlement will be extended to workers, as well as employees; and
• the statement will also be required to contain a number of additional particulars including amongst other terms, those on sick leave, maternity pay and paternity pay.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.