Should I have been Provided with a Contract of Employment?
Whenever we receive an initial enquiry from a client, one of the first questions we ask is whether they have a contract of employment? Surprisingly, a large proportion of our clients answer that they do not. An employer has an obligation to provide an employee with the terms of their employment. Please read on for more information about this obligation.
What Obligation Does an Employer Have?
An employer has an obligation to provide their employees with a written statement of their particulars of employment. This document is usually referred to as a “Section 1 Written Statement”.
An employer has an obligation to provide a Section 1 Written Statement to both employees and workers.
The employee must be provided with the Principle Statement on or before their first day of employment.
The Principle Statement must include the following information:
- Names of the employee and employer
- The employees job title (or a description of their role)
- The employees primary place of work
- The start date that the employee commences work
- The employee’s rate of pay and when they are to receive payment
- The employee’s hours of work
- What holiday entitlement the employee is to receive
- If the contract is not a full-time contract, when will the contract terminate?
- Details of any probation period
- Whether there is any obligatory training, and who shall pay for this
These ten key criteria must be contained within one single statement or document.
The following information must be provided on or before the first day of employment but does not have to be contained in the Principle Statement. It is acceptable for this information to be contained in a separate document, for example the staff handbook:
- Sick pay and the procedures for obtaining sick pay
- Other paid leave entitlements (maternity, paternity, adoption etc)
- The notice periods for both the employee and employer
The final obligation is for a wider written statement to be provided within two months of the commencement of employment in which the following information is provided. Again, it is acceptable for this information to be contained in the staff handbook:
- Pension arrangements
- Collective Agreements
- Disciplinary rules and procedure
- Grievance rules and procedure
- Details of any non-compulsory training
The Section 1 Written Statement is the basic obligation which an employer must provide; however, it is much more common for employers to provide employees with a Contract of Employment.
A Contract of Employment will often contain the information needed to satisfy the Section 1 obligation but is a much wider, more detailed document which contains additional information.
What is a Contract of Employment?
A contract of employment sets out the terms on which a person has been employed. Both employees and workers are entitled to receive a contract of employment setting out these terms.
The contract of employment will usually contain a mixture of express terms and implied terms.
Express terms are terms that have been expressly agreed between both parties. In a Contract of Employment, the ten key criteria discussed above in the Principle Statement must be shown as express terms. However, it is common for Contract of Employment to go further than the basic obligations under the Principle Statement. The usual practice is that additional express terms are agreed such as:
- Entitlement to commission or bonuses
- Restrictive covenants / confidentiality provisions
- Details relating to Company property
Implied terms are terms that have not been expressly agreed, but there is an implied understanding by both the employee and employer that these terms will be followed. Examples of these are:
- Agreement to treat each other with mutual trust and confidence
- Agreement from the employer to provide the employee with a safe work environment.
A contract of employment will usually contain important information on how the terms of employment can be amended or changed by the employer. For more information on this please see our blog https://lincslaw.co.uk/blog/work-and-coronavirus-changes-to-terms-and-conditions-of-employment/
What to Do If an Employer Does not Provide a Section 1 Written Statement?
If an employee has not been provided with a Section 1 Written Statement or Contract of Employment, they should first request their employer provides them with one.
Similarly, existing employees are entitled to request a copy of their Section 1 Written Statement or Contract of Employment be provided to them by their employer.
Can an Employee Bring a Claim Against the Employer for Failure to Provide a Section 1 Written Statement?
If an employee is not provided with a Section 1 Written Statement, they can bring a claim in the Employment Tribunal against their employer. However, it may not always be worthwhile for an employee to bring a standalone claim.
A standalone claim for failing to provide a Section 1 Statement does not entitle the employee to receive any compensation. The Employment Tribunal Judge will instead make a judgement on what the terms of employment are and what information should have been provided in the Section 1 Statement / contract of employment.
However, if an employee has a claim for a failure to provide Section 1 Section and an additional claim (such as unfair dismissal or discrimination), they can bring both claims in the Employment Tribunal. If the employee is successful in winning their additional claim, the Employment Tribunal Judge can award an additional 2-4 weeks’ gross pay as compensation for not being provided with a Section 1 Statement.
Lincs Law Can Help You
If you have any concerns surrounding your contract of employment, please do not hesitate to contact us on 01522 440512 for a free, initial, no obligation telephone consultation.
Specialist Employment Solicitor