Return to the Office – An opportunity to re-examine recent changes relating to section 1 statements

In recent weeks Scotland has relaxed its working from home guidance and workers in England are being actively encouraged to return to the office.

For many businesses, this will mark the first time returning to the office in over two years. Given the vast and varied challenges arising during that time, some employers may have well missed the changes to the rules regarding section 1 statements under the Employment Rights Act 1996.

What is a ‘section 1 statement’

Since 6 April 2020, employers have been required to give all employees and workers a written statement outlining certain particulars of their employment. A section 1 statement (also known as written particulars of employment) is not necessarily a contract itself and can sit alongside a separate written contract.

Who do we need to provide a statement to?

Employers must provide a section 1 statement to all employees and workers commencing work on or after 6 April 2020, regardless of their length of service. Generally, a section 1 statement must be provided on or before the beginning of the employment. This is subject to some qualifications which are noted below.

What does a statement need to include?

There is an extensive list of particulars which must be included in a section 1 statement and this has been significantly extended as a result of the changes in April 2020. Some of the new information now required includes:

• Details of any probationary period, including any conditions and its duration;
• Details of any training entitlement which the employer requires the employee or worker to complete and any other training which the employer requires the employee or worker to complete but which the employer will not pay for;
• Details of all benefits provided by the employer;
• Details relating to any paid leave (including maternity leave, paternity leave, shared parental leave, etc).

As noted above, there are some exceptions relating to the timing upon which certain particulars must be given to employees and workers. For example, some particulars must be contained in a single document given by the beginning of the employment, some may be contained in a reasonably accessible document that the section 1 statement refers to, and some may be given in installments within 2 months after the start of the employment.

Do we need to amend pre 6 April 2020 contracts?

Employers do not have to amend contracts of employees or workers who started before 6 April 2020 to reflect the new rules. However, if an employee or worker who started before 6 April 2020 requests a section 1 statement then you must provide them with a statement that complies with the new rules within a month of any such request.

Consequences of non-compliance

As the law stands, employees can only bring a tribunal claim against their employer for failure to provide a section 1 statement if it is brought alongside another successful claim. They cannot bring a freestanding claim. If an employee can successfully show that they were not provided with a compliant statement, they may be awarded an additional two to four weeks’ pay (subject to a statutory cap, currently £544 per week).

In 2017, the Taylor review (a review of modern working practices) recommended that the Government give consideration to introducing a standalone right for individuals to bring a claim for compensation if an employer fails to provide a written statement. Despite no formal legislation having been implemented since this recommendation, there is a possibility we might see changes to that effect in the pipeline.

Reviewing/Updating your contracts

We regularly advise clients on a wide range of employment contracts. Please get in touch if you would like to speak to us about undertaking a contract review. Our fee for a full contract review starts from £500 + VAT.

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