Employee Contracts, Terms & Written Statements of Particulars
It is essential that a recruitment business has the correct contractual terms in place with its employees. Having no terms or poorly drafted terms in place can cause huge issues for any employer, but particularly recruitment businesses for whom client and candidate data are its key asset. This section will tell you what you need to know about employment terms. Corporate members can also access a Model Contract of Employment and related documents.
See also: Unfair dismissal
What is a written statement of particulars?
A written statement of particulars is a document that an employer is required to give to their employees, and other workers, which sets out the main provisions of the contract. The requirement arises from section 1 of the Employment Rights Act 1996, this provision determines who it must be given to, when it must be given and must be included in it.
When must a written statement of particulars be provided?
From 6th April 2020, the Employment Rights Act 1996 (the ERA 1996) was amended where employers must provide a written statement no later than day one to all workers and employees. The written statement sets out the terms the worker or employee will be engaged under by the employer. The written statement must be in a single document setting out the information required under the ERA 1996. The previous requirement to provide a written statement to employees in short-term employment for a period of less than one month no longer applies, so workers and employees have the right to receive a written statement, no later than the time their employment starts, irrespective of how long their employment ultimately lasts.
Who is entitled to a written statement of particulars?
As of 6 April 2020, the obligation to provide a written statement of particulars currently applies to all employees and workers; this includes those directly engaged by yourself as consultants or other internal staff; any employed agency workers that you may be supplying to your clients; and any temporary workers engaged on contracts for services.
Prior to this, the requirement to provide a written statement was applied only to employees, covering both internal staff and employed agency workers.
What should be included in a written statement of particulars?
A written statement of particulars must specify:
- the names of the employer and employee;
- the date when the employment began;
- the date the employee’s period of continuous employment began;
- the scale or rate of remuneration or the method of calculating remuneration;
- the intervals at which remuneration is paid;
- any terms and conditions relating to hours of work, the days of the week the worker is required to work, and whether or not such hours/days may be variable and how;
- any terms and conditions relating to holiday entitlement or any other paid leave;
- any terms and conditions relating to incapacity for work due to sickness or injury;
- any terms and conditions relating to pensions and pension schemes;
- any terms and conditions relating to any other benefits;
- details of any training in which the worker is required to participate;
- the length of any probationary period the worker is required to pass;
- the notice period the employee is obliged to give and is entitled to receive;
- the title or brief description of the employee’s job;
- where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date on which it is to end;
- details of the place of work or, where the employee is to work at various places, an indication of that and the address of the employer;
- details of any collective agreements which directly affect the terms and conditions of employment including, where the employer is not a party, the person by whom they were made;
- details of the company’s disciplinary rules and procedures and grievance procedures.
Additionally where the employee is required to work outside the UK for more than a month, the statement must give details of:
- the period for which the employee is to work outside the UK, the currency in which remuneration is to be paid during that period and of any additional remuneration paid or any extra benefits provided by reason of the employee being required to work outside the UK;
- any terms and conditions relating to the employee’s return to the UK.
Where there are no details available for any of the above matters that are required to be included in the written particulars, then that must be expressly stated in the written statement.
The written particulars must be included or referred to in a single document. References in a written statement to other documents giving the above particulars are restricted to documents giving particulars of sickness, pension and disciplinary and grievance provisions only.
As much of the content of the written statement is the same as would be provided to a temporary worker in their assignment details form, the two documents can be combined.
The REC has produced a model written statement of particulars for members to use with their permanent employees, as well as written statement of particulars for temporary workers and a written statement of particulars combined with an assignment details form.
Should I be giving my employees a written statement of particulars or a contract of employment?
A written statement of particulars is evidence of the termsand conditions of a contract of employment but it is not a contract ofemployment. The written particulars provide a statutory minimum for terms to begiven to an employee. An employer can provide either a written statementof particulars meeting this statutory minimum or a more detailed contract ofemployment – for example, the written statement of particulars does not have toinclude restrictive covenants which are particularly important for recruitmentbusinesses. If you supply your employees with a written contract ofemployment that covers all the required particulars, there is no need to issuethem with a separate written statement also.
The REC has produced both a model contract of employment and a model written statement of particulars for members to use.
Do I need to update the written statement of particulars?
Employers are obliged to ensure the written statement is up-to-date. Employees and temporary workers must receive a written statement detailing any changes to the particulars as soon as possible after a change takes place and in any event within one month of the change.
What happens if I fail to provide a written statement of particulars?
If an employer does not provide a written statement of particulars, or provides one that does not fulfil all the necessary criteria, then a complaint can be brought in the employment tribunal. The purpose of this complaint would be to establish what the correct content of the particulars should have been. The employment tribunal has the power to state what should be set out in a written statement of particulars if one has not been provided, or if the provided statement does not contain all of the necessary information.
Whilst compensation cannot be awarded to an employee solely because their employer has failed to provide a written statement, there is scope for compensation to be awarded in certain scenarios where a proper written statement of particulars was not provided. This would be the case where the employee was making a claim under section 38 of the Employment Act 2002 in conjunction with another claim listed in Schedule 5 of the 2002 Act; these claims can include claims for unlawful deduction of wages, unfair dismissal, and unlawful discrimination under the Equality Act 2010 among others. Where this is the case, the employment tribunal is able to make an award of compensation to the employee who brought the claim, provided that at the time the claim is brought the employer has still failed to provide a written statement of particulars. The size of the award will be a minimum of two week’s pay, and can be up to four week’s pay where the employment tribunal considers it just and equitable to make the higher award.
Should I also have a staff handbook?
Due to the number of rights and obligations that apply to an employment relationship, it can be useful for employers to set out their policies and procedures for all their employees in a staff handbook.
The main advantages of having a comprehensive set of your policies in a handbook is that it helps to ensure consistent treatment of your employees, and makes them aware of their rights and obligations.
Also, it is much easier to update polices contained in the staff handbook, rather than amending the terms in your employee’s contract.
Having clear and transparent policies can help you prevent and defend any claims brought by employees. The REC has produced a range of model policies for members to use.
NB: You should ensure that your staff handbook is readily accessible to all your employees.
How do I vary the terms of an employee's contract of employment?
Before considering how to vary a contract of employment, it is worth recapping what a contract of employment is. A contract of employment sets out the rights and obligations which bind the employer and employee to the contract. The terms of a contract can be:
- express - terms which are explicitly agreed between the employer and employee, either in writing or orally. They can be set out in a letter of appointment, contract, staff handbook and/ or a collective agreement;
- implied - terms which have not been spelled out but which are (a) considered obvious, e.g. the employee will not steal from the employer or that the employer will provide a safe working environment, (b) necessary to make the contract workable (e.g. that an employee employed as a driver will hold a valid current driving licence or (c) the custom and practice of the business or industry which has been adopted over a period of time;
- statutory - rights given by legislation e.g. the right to be paid the national minimum wage or to paid annual leave. Agreements to contract out of statutory terms are normally void under the law.
When it comes to varying terms, the general principle is that an existing contract of employment can only be varied with the agreement of both parties, i.e. you must get the consent of the employee to make the changes to their employment contract.
You should first check the nature of the terms you want to change. As above, if it is a statutory right you cannot change this except to improve upon the right e.g. giving more than the statutory holiday entitlement or paying more than the national minimum wage. Otherwise check the contract to see if the changes are actually allowed within that contract, i.e. if you wish to vary an employee’s duties, you may have a clause stating that the employee must carry out such additional duties as you may specify, consistent with their position within the company. Such a clause would allow minor, reasonable changes to an employee’s duties, however if you were looking to change their duties completely, this is unlikely to be covered and so you would need to follow the advice set out below.
If the variation you wish to make is not within the terms of the contract, e.g. as above, check if you have a variation clause which allows you to make reasonable changes to the contract. For an example see clause 26 of the REC Model Contract of Employment. Even where you have a variation clause you should still try to obtain the express agreement of the employee to the variation. Note that an employee may not agree that a variation you wish to make is reasonable – e.g. where the business wishes to change the employee’s hours but those hours have previously been negotiated to accommodate other commitments. Similarly, if terms were previously agreed by collective agreement, a variation should also be agreed collectively.
Any changes to the terms of employment must be notified to employees within one month and you must make sure that they are fully aware of any detrimental changes that are to be made and that they accept them, so as to be enforceable. Whilst a variation can be agreed orally, it is preferable to agree the variation in writing so that both employer and employee are clear on the changes.
Depending on the severity of the change (and the importance to you), you may wish to consider a “sweetener” in return for their agreement to the variation e.g. additional leave (paid or unpaid) or additional pay. As pay rises are a fairly common and standard form of contract variation it may be sensible to try and time other variations for the same time as you give these as the benefit of the increased pay can be used to offset any other contract variations you are looking to implement.
If the employee does not give their consent to the variation, there are two options both of which contain risks of claims being brought against you:
- terminate the employee’s existing contract by giving the required notice and then offer to re-engage the employee on the new terms. This procedure would alter the terms of employment, however by terminating the old contract, you have effectively dismissed the employee and so, subject to them having the relevant qualifying period, they could claim unfair dismissal. Also, if you haven’t followed the Acas Code of Practice on Disciplinary and Grievance Procedures , then the dismissal could be held to be unfair;
- unilaterally vary the employee’s contract terms. The subsequent actions of the employee will determine what the outcome is, but it is important to note that the basic position is that a unilateral change to employment terms made by an employer is a breach of contract.
The employee has three options once you have informed them of the changes:
- they can continue working under these new terms, without objecting. It is likely then that they will be deemed to have accepted these changes in due course by virtue of their conduct and so the employment contract will continue, with the variation; or
- they could refuse to accept the changes and continue working on the old terms (whilst still retaining the right to seek damages for breach of contract and/or a declaration from the court that you must abide by the original terms) (this is often referred to as working under protest. However an employee who continues to work under protest for a long period of time will at some stage be deemed to have accepted the varied terms); or
- they could resign and claim constructive dismissal against you (subject to having the relevant qualifying period), treating the variation as a fundamental breach of contract, thus bringing their employment to an end.
Because of the potential risks of a claim involved in carrying out either of the above options, you should seek further legal advice on your individual circumstances and the risks involved before you take any action.
Further guidance on variation of a contract of employment can be found on the ACAS website.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.