The very first right set out in the Employment Rights Act 1996 (in section 1, would you believe!) is the right for a worker to receive a statement within one month of the particulars of their employment.
Workers
Until 2020 section 1 was a right that was the preserve of employees only. A section 1 statement is not a contract of employment, but it will give a very good guide as to what the contract of employment includes.
In many areas, the statutory right to the particulars of employment is honoured more in the breach than the practice. It will contain important information what will allow the worker to assert their rights later on if an employer treats them unfairly. So, what if an employer fails to provide a worker (or employee) with the statutory statement they are obliged to provide. The simple and underwhelming answer is not much.
A worker (or employee) who does not receive a part 1 statement may apply to the Employment Tribunal (probably after informally asking the employer first!) to determine what should have been included in the particulars. This right is contained within section 11 of the Act and, unlike many ET claims, if the worker is still employed then the “reference” may be made at any time but, if the engagement has been terminated then this must be made within three months of the end of employment.
The extent to which this is an adequate protection is debatable since the only remedy is the ET directing what the particulars should be, there is no prospect of any compensation. If an employer has failed to comply with its duties under section 1 of the 1996 Act, then it will be a brave worker who challenges their employer (especially as this will normally be early on in the working relationship) and so mark themselves as a troublemaker.
For a worker, this right is the worker’s main express legal remedy against a breach. If they are dismissed for exercising the right, which is the assertion of a statutory right which makes a dismissal automatically unfair, will be of no benefit because only an employee (not a worker) can benefit from that protection. There is however, one possible provision that could come to a worker’s rescue. While a claim of automatic dismissal for whistleblowing will be beyond a worker’s reach (because this is dependent on being a worker) they may be able to ‘shoehorn’ the issue into a whistleblowing detriment claim (which can include dismissal for workers only) under section 47B of the 1996 Act (whistleblowing), but this is speculative only (and would be likely to face difficulties).
Section 38 of the Employment Act 2002 introduces a different remedy but can only be used in conjunction with another claim, for this reason the right has been referred to as “parasitic”. If (and only if), in ET proceedings a claimant is successful in any claim that is listed in schedule 5 of the Act the employment tribunal must where section 38 is relied upon (unless exceptional circumstances exist) give an award of two weeks’ pay in addition to any remedy for the infringement itself and that figure can be increased to 4 weeks’ pay. The main claims listed which a worker can benefit from are claims for unlawful deduction of wages, health and safety detriments, whistleblowing detriments, trade union detriments, and Equality Act complaints.
All of which means, in my opinion, that the extension of the section 1 right to workers means any improvements for workers are doubtful, especially if there is a risk that an employer can effectively subvert the intent of the act by ending the contract of any worker who puts their head above the parapet and asserts their rights. And, unless they have a claim that relates to one of the claims in schedule 5 of the Employment Act 2002 which is a right a worker can exercise, there is no prospect of any financial remedy for the employer’s failure to provide a section 1 statement.
The availability of a remedy under section 38 of the Act is not commonly known and so it is also useful to consider adding as a “parasitic claim” where a section 1 statement has not been given because it is normally the case, if the main claim is successful, that an additional award must normally be given. Success means a relevant case has actually been determined, it does not include settled claims even if it is accepted a section 1 statement was not given – Advanced Collection Systems Ltd v Gultekin (2015).
Employees
The position on vulnerability to dismissal for workers is a further example of the perverse approach to employment rights whereby the more vulnerable a worker is to exploitation by an employer the less robust the legal rights they have to protect them imposed by the State.
Any employee who is dismissed (although intriguingly, and worryingly, not those who are put to a detriment other than dismissal) will be protected against dismissal for asserting a statutory right in that any dismissal for that reason will be automatically unfair (section 104) and the exercise of actions to require compliance with the employer’s section 1 disclosure requirements are expressly stated to be a relevant statutory right (section 104(4)(a) of the Act).
However, an employee can also benefit from the option of a parasitic section 38 claim and, in the employee’s case the range of cases that apply is larger, notably including a claim of unfair dismissal.
It is less than ideal that the right to financial remedy if an employer fails to provide a section 1 statement is not a freestanding one but dependent on the employee (and worker) being successful in a relevant claim in the employment tribunal then a worker or employee may be eligible to an additional award of up to four weeks’ pay (capped at the statutory weeks pay) so, in at the moment an additional award of £2,284 (4*£571).
This right is not well known but is always something it is wise to include in any new ET claims where the employer has not complied with their duties to under section 1 of the Employment Rights Act 1996.
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