From 6 April 2020, the practice direction that governs statements of truth for witness statements and statements of case is changing.
Now 2020 is here and we have welcomed in the new decade, it’s time to welcome in changes regards the contents of employee’s statement of particulars.
These changes will take effect from 6 April so giving time to endure January, without whatever treat we are denying ourselves, and get prepared!
|Pre April 2020||Post-April 2020|
|Who does it affect?|
|Obligation to provide a written statement is to employees only.||Obligation is extended out to include workers.|
|Single document or different documents|
|Written statement may be made up of principal statement, supplementary statement and reasonably accessible documents (certain particulars to be included in a single document).||Majority of written particulars to be provided in a single statement. The following are now to be included in the principal statement when previously they were included in the supplementary statement:|
|Days of the week the worker is required to work and whether those working hours may be varied and how that variation will be determined.|
|Details of paid leave.|
|Details of any other benefits provided by the employer (not included elsewhere in the document).|
|Any probationary period (including conditions and duration).|
|Any training entitlement provided by the employer – including whether training is mandatory or must be paid for by the worker.|
|Notice periods for both worker and employer.|
|Term of fixed-term work.|
|Terms related to working outside the UK for a period of more than a month.|
|Particulars relating to incapacity and sick pay, paid leave, pensions and training entitlement provided by the employer can be contained in a reasonably accessible document – reference to this document must be included in the principal statement.|
|Written statement to be provided to the employee within two months of starting employment.||Written statement to be provided to workers and employees on or before the date of employment.|
|Certain particulars; those relating to pensions, collective agreements, any training entitlement provided by the employer and certain information about disciplinary and grievance procedures must be provided within two months of starting employment and in a reasonably accessible document.|
|Minimum service requirement|
|Employees must be employed for longer than a month to qualify for statement of particulars.||All workers, regardless of the length of their employment, will be entitled to a statement of particulars from day one of their employment.|
|The right to make a complaint where an employer has failed to provide a statement or failed to provide an accurate, complete section 1 statement for employees only.||This right is extended out to workers.|
|If no other substantive claim i.e. for unfair dismissal, unauthorised deduction of wages etc., then the only remedy will be a declaration from an employment tribunal either confirming the particulars as they stand or amending them||No change.|
Frequently Asked Questions
Do I need to change all my existing contracts to make sure they are all compliant with the regulations post-April 2020?
These changes will only apply to those starting work on or after 6 April 2020. You do not need to update all your existing contracts, however, you will need to ensure that all new workers from 6 April 2020 are given the correct section 1 statement. There are some situations where transitional provisions apply:
- If an “existing employee” (those whose employment commenced on or after 30 November 1993 and before 6 April 2020) requests a section 1 statement either whilst employed or within three months of the termination of their employment, they must be given a statement compliant with the new legislation. An existing employee can only make one such request; and
- If, after 6 April 2020, there is a change in any of the particulars that are required to be provided to an existing employee in accordance with the amended section and if that employee has not previously requested a more recent section 1 statement, the employer must notify the employee in accordance with section 4.
What’s a reasonably accessible document?
There is no case law on what this term means; provided the documents are readily available from HR or on the employer’s intranet and all employees and workers have access, this should be sufficient.
What is the purpose of these changes?
The direction of travel for the Good Work Plan is to protect vulnerable workers and one way of doing this is to ensure that all workers have clear accessible documentation that sets out in detail the extent of their rights. By changing the law so that workers now have the right to a statement of particulars that must include a raft of details, it is hoped this will start to address this issue.
Can I be fined if I fail to provide the new particulars?
An employee (and a worker), as from 6 April 2020, can make a complaint to the tribunal if they have no section 1 statement or if it is inaccurate or incomplete. Once that worker’s employment has expired, they have three months to bring a claim. The Tribunal can make a declaration that the particulars be amended but they will not award compensation to the worker in those circumstances. The only time that a tribunal will make a financial reward is if the failure to provide a section 1 statement is brought together with a substantive claim i.e. for unfair dismissal, discrimination etc. and then the employee (it can only be an employee in certain substantive claims) will be entitled to a minimum of two weeks’ pay. The tribunal may award a higher amount of four weeks’ pay but only in certain circumstances.
How do I prepare?
- Draft new contracts for all workers and employees starting after 6 April ensuring they are compliant with the changes
- Update HR managers and other relevant staff so they understand the new legislation and the reasons for the changes
- It may be a useful opportunity, if time pressures allow, to start an audit of other contracts and look to bring them up-to-date with the new statutory section 1 guidance
- Seek specific advice on issues within your organisation that throw up unique issues and questions when faced with these changes
For further information on how to prepare for these changes, please contact Matt Wort.
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