Are you making sure you issue the correct paperwork to all of your staff?

You should be aware that if somebody works for you for a month then you have to issue them with a statement of employment particulars, normally incorporated into the contract of employment, as there are good reasons for wanting anyone that we employ to be on the right contract so that we’ve got the control and flexibility and things that we would like to have. What happens if somebody starts, fails their probation and isn’t with you for very long? Do you still issue the paperwork?

A recent case has confirmed that the answer to that is ‘yes’ – the case being Stefanko and others v Maritime Hotel Ltd. The Claimants were all short serving waiting staff at the hotel. One was only employed for six weeks. The employees bought various claims in relation to the termination of their employment and one in particular succeeded in an automatically unfair dismissal claim. If an employee has a claim for something else, they’re then able to ‘piggy-back’ a claim in relation to failure to give them a payslip or a statement of employment particulars on the back of that other claim.

The original tribunal felt that because the employee had not reached two months (two months being the amount of time given by Section 1(2) Employment Rights Act 1996 for an employer to provide a written statement), that it would not enhance her award.

On appeal the Employment Appeal Tribunal decided that that was incorrect. Section 2(6) of the Employment Rights Act 1996 says that the right to a statement of employment particulars exists even if the person’s employment ends before the two months are up and it should have been issued after one month.

Currently there is an exception to the right for employees who work for less than one month, but that is due to be repealed with effect from the 6th April 2020 under the Employment Rights (Employment Particulars and Paid Annual Leave) Amendment Regulations 2018. From 2020 every new employee will have the right from day one to have their paperwork. HR departments need to start considering how they’re going to amend their processes to enable that to happen.