Employment Insight: Written particulars – employers should plan ahead for upcoming changes

Employers will be pretty familiar with the existing obligations around providing written particulars, but by way of broad summary the current requirements are that:

  • Employers must provide specified information to employees in accordance with sections 1-3 of the Employment Rights Act 1996.
  • The information currently includes (this is not an exhaustive list) fairly basic information about entitlements such as pay, holidays and holiday pay, sick pay, pensions, notice entitlement, grievance procedure and applicable disciplinary rules (if any).
  • The information must be provided in writing, no later than two months after the date the individual starts work.
  • Any changes to any of the mandatory information must be provided in writing in accordance with s.4 ERA.

However significant legislative changes will take effect from 6 April 2020. They are quite detailed but the principal changes will significantly extend the employer’s obligations in the following ways:

  • All ‘workers’ will also become entitled to written particulars – at present the entitlement applies only to employees;
  • Currently the obligation to provide written particulars does not apply if the employment lasts less than one month – in future it will be a “Day 1” right;
  • The deadline for providing the written statement will also be (with some limited exceptions – see below) no later than the first day of work;
  • The information that may be provided later than day 1 (but no later than 2 months after starting work, even if the engagement has already finished by then) includes certain information about pensions, collective agreements, training, and disciplinary and grievance rules and procedures;
  • The ‘shopping list’ of mandatory particulars will also be expanded. New information to be provided in future includes:
    • more detail about which days and hours the individual may be required to work;
    • whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined;
    • any entitlement to any other sort of paid leave;
    • any entitlement to any other contractual benefits provided by the employer;
    • details of any applicable probationary period, including its duration and any terms that apply during that period;
    • information about any entitlement to training provided by the employer, and/or about any training that the employer expects the employee to complete but which the employer does not pay for.
  • As is currently the case with the existing list of mandatory information, if there is no applicable information to provide for any item on the list, that must be stated in the written particulars rather than simply left unsaid.

These additional requirements will apply only to work engagements starting on or after 6 April 2020 so there is no cause for immediate panic. Nonetheless employers should still be planning ahead to avoid being caught on the hop. In particular:

  • It is likely to be necessary to review the standard terms on which the employer currently engages individuals to work, amending as appropriate to include all the new items of mandatory information and bearing in mind the need to say something in writing about each item, even if only to say there is no applicable information on that point.
  • Employers may need to give careful consideration to which individuals fall into the category of ‘employee’ and which into the category ‘worker’. Workers may, for instance, include individuals that the employer thinks of as ‘independent consultants’, but who are nonetheless ‘workers’ for these purposes.
  • There are slight differences in the written particulars applicable to each category; of particular note is that a worker’s written statement of particulars won’t refer to the start of their continuous employment. Employers must take care to ensure a worker is not inadvertently issued with the ‘wrong’ sort of particulars, or they might later be put forward as evidence of an intention to create an employment relationship. If there is any doubt about an individual’s employment status, it is likely to be worth seeking advice well in advance of 6 April.
  • It may also be necessary to review and streamline recruitment processes in advance of 6 April 2020, to ensure the employer can meet the requirement to provide the appropriate written particulars by no later than day 1, especially if they are accustomed to providing them only after the individual has started work.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of May 10, 2019.