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Peter Olszewski
Peter Olszewski,
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Are you obliged to provide a written statement of particulars to employees if they work for less than 2 months?
19 February 2019

The Employment Appeal Tribunal (EAT) was asked to consider this question in the case of Stefanko and Others v Maritime Hotel Limited.

Background

Miss K Stefanko, Miss J Woronowicz and Mr Jonik, three Polish nationals, were all employed to work at the respondent hotel commencing their employment on various dates after 21 April 2016 until their summary dismissal on 7 July 2016. Two of the claimants had completed more than eight weeks of employment by the time of their dismissal and the third had completed six weeks of employment. 

The respondent employer’s director, Mr N Doherty had subjected the three claimants to abuse over the course of their employment to include mimicking their accents when reprimanding them, swearing at them and telling them to go back to Poland. The claimants’ wage slips were falsified and they were not paid for all of the hours they had worked. The claimants were eventually dismissed when they complained about their unpaid wages.

By the time of their dismissal, none of the claimants had been provided with a written statement of the particulars of their employment. Section 1 of The Employment Rights Act 1996 (ERA) states that employers must provide such a written statement no later than two months after the commencement of employment.  

The three claimants issued proceedings in the Employment Tribunal (ET) for automatic unfair dismissal, discrimination and the respondent’s failure to provide written statements of the particulars of their employment.

The Employment Tribunal decision

The case was heard in the ET in June and July of 2017. On the issue of the written statement of particulars, the ET held that the respondent had failed in its statutory obligation with regard to the two claimants that had completed more than two months employment, but not with regards to the claimant who had only completed six weeks employment. The ET stated, “The obligation under Section 1 of ERA is to provide such particulars not later than two months after the beginning of the employment” and therefore that claimant did not qualify to make a complaint about not receiving a written statement.

Where an employer fails to provide the written statement the ET can award the employee either two or four weeks’ pay as additional compensation. 

The claimant appealed the ET’s decision.

The Employment Appeal Tribunal decision

Section 198 of ERA provides that sections 1-7 ERA do not apply to an employee if his or her employment continues for less than one month. Since the claimant had continuous service for six weeks, she was unaffected by that provision.

The EAT held that the effect of sections 1 and 198 of ERA is to make the entitlement to a section 1 statement a time served right, applicable to employees with one month’s service, but thereafter, the employer is provided with one month’s grace in which to supply the written statement. However, the obligation to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month.

Upholding this part of the appeal the EAT held that the claimant was entitled to and did not receive her statement of terms and conditions contrary to sections 1 to 7 of ERA.

The EAT went on to say, “It goes without saying that whilst sections 1 to 7 and 198 of ERA  represent the minimum floor of legal rights, it is best practice for the written particulars to be provided as soon as possible to protect both parties and in order to minimise risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship.”

Boyes Turner can assist employers in preparing written terms of particulars for employees or contracts of employment. Should you require any advice or assistance with regard to preparing these documents please contact us on [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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