The law currently states that employees are entitled to a written statement of the particulars of their employment no later than two months after starting their job. The Employment Appeal Tribunal (EAT) has held in Stefanko and ors v Maritime Hotel Ltd and anor that an employee who has worked for more than one month but less than two is also entitled to a statement.
The three claimants in this case were all Polish nationals who started work as waiting staff at the Maritime Hotel on various dates from 21 April 2016 onwards. During their employment, they were not treated well. Not only were they sworn at by the manager (who was also the co-owner of the hotel) but they had to complain repeatedly about shortfalls in their wages, late payment of their wages and falsification of their wage slips
On 7 July 2016, two weeks after the Brexit referendum, they were dismissed summarily by the manager who told them to pack their bags and leave the hotel immediately which they did. They brought a number of complaints, including the failure to provide them with a written statement of their terms and conditions of employment under section 1 of the Employment Rights Act 1996 (ERA).
At the time of dismissal, one of the claimants, Ms Woronowicz, had only worked for six weeks when her employment ended, two weeks shy of two months’ service.
Section 1 ERA states that employees are entitled to a written statement setting out the particulars of their employment “not later than two months after the beginning of the employment”.
Section 2(6) ERA provides that “A statement shall be given to a person under section 1 even if his [sic] employment ends before the end of the period within which the statement is required to be given.”
Section 198 ERA provides that sections 1 to 7 do not apply to an employee if their employment continues for less than one month.
Section 38 of the Employment Act 2002 states that, if the employer fails to provide a written statement in breach of section 1, the tribunal can make a minimum award equal to two weeks’ pay or a higher award of four weeks’ pay, if it is “just and equitable in all the circumstances” to do so.
The tribunal found, among other things, that Ms Woronowicz was not entitled to a written statement as she had been employed for less than two months at the hotel when she was dismissed. As such, she was not entitled to an award of pay for the failure to provide the statement.
The EAT, however, disagreed, holding that the tribunal had overlooked section 2(6) ERA. According to the EAT, the effect of sections 1, 2 and 198 was to make the entitlement to a section 1 right a “time-served right” applicable to employees with one month’s service, which then gave the employer one month’s grace in which to supply the written statement.
However, the obligation to provide the statement continued for employees with one month or more service, whether or not the employment relationship ended in its second month. It did not, therefore, follow from the flexibility afforded to an employer by section 1(2) ERA that they did not have to provide a statement if the contract ended within two months.
It therefore set aside the tribunal’s decision and remitted the case to a different tribunal to calculate the award under section 38 of the Employment Act.