Do you have to compensate an employee if they don't receive a written statement of their T&Cs on time?

A few weeks ago, we reported the case of Stefanko and others v Maritime Hotel Ltd where the EAT decided that staff who had worked between four and six weeks should have received written statements setting out their terms and conditions of employment - even though they all left before they had worked for two months.

This matters because employees who don't receive a written statement within two months of starting work can receive up to four weeks pay.  That's going to change next year. From April 2020, both workers and employers must receive this information from the first day of their employment.

A new case Govdata Ltd v Denton has looked at whether an employer can avoid liability if it provides a statement later than two months.

Facts

Mr Denton was employed by Govdata on 1st December 2015 but didn't receive a written statement setting out his terms and conditions of employment for over six months.

He was dismissed in August 2016 and brought a claim a few months later which included an allegation that his employer had failed to provide him with a statement within two months of his start date as required under section 1 of the Employment Rights Act 1996.

Decision

The EAT concluded his employer had met the requirement in section 1, albeit late. 

It said that tribunals could only award compensation where the employer was in breach of their duty when proceedings commenced. In this case late compliance was still compliance and Mr Denton wouldn't receive an additional four weeks pay. 

Implications

Employees can only claim compensation from their employer for failing to provide them with a written statement if they bring another separate claim. In other words, there is no free standing right to bring this type of claim - it has to be tagged on to another one.

In most cases you will know if your employee is likely to bring a claim against you - particularly if ACAS contact you for early conciliation. Therefore, if you think your employee might take legal action against you, it's sensible to check to see if you have given the employee a section 1 statement. If you haven't you can remedy this - without penalty - before the employee issues a claim against you.

Section 1 statements don't have to be complicated and we can help you prefer a template for your business.

Need more information?

Please contact our employment partner Melanie Stancliffe: melanie.stancliffe@irwinmitchell.com or +44 (0)207 421 3971.

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