Written Statements, contracts, and changing terms in your contract

All PAYE employees and workers are legally entitled to a Written Statement, which they must receive before they start work, or, at the latest, on their first day of work (in Northern Ireland only employees – not workers – are legally entitled to a Written Statement, within 2 months of starting work).

This statement is a summary in writing of their main terms and conditions of employment. It’s not itself a contract of employment but is evidence of the contract of employment (and it’s usually combined within their actual contract!!!).

What is a contract of employment?

A contract of employment is a legally binding agreement between an employer and employee, which is formed when an employee agrees to work for an employer in return for pay. It may be made orally, but should be in writing to avoid dispute.

The contract contains the employees rights and duties, and the rights and duties of the employer – called the ‘terms’ of the contract. Some of the main particulars of employment must be put in writing, i.e. in a written statement.

What should be included in a Written Statement?

The right to a written statement comes from Section 1 of the Employment Rights Act 1996 (ERA), as amended, and is sometimes called a Section 1 statement.  The written statement must include:

• The name and the address of the employer
• The date the employment and continuous employment began
• The employees job title and job description
• The job location
• The pay details
• The working hours
• Holiday entitlements and rest breaks details(under the Working Time Legislation)
• Details of Sick pay entitlement and notification time-scales (or where this information can be found)
• Details of the pension scheme the employer operates
• The notice periods needed to end the employment. See below for more information on notice periods
• The employer’s disciplinary rules and procedures, grievance procedures (or information explaining where to find these details) and details of any collective agreements the employer has with Trade Unions that directly affect conditions of employment (or information about where these details can be accessed)
• Information relating to any work that needs to be undertaken outside of the UK (for longer than one month).

In addition to the current requirements for a Section 1 Statement (Written Statement), from April 2020 employees and workers (in England, Wales and Scotland) will also need to know:

• The days of the week they are required to work
• Whether the working hours or days are variable, and if they are variable details of how they will vary
• Any entitlement to paid leave, including maternity leave and other family leave (or details about where this information can be found)
• Any other remuneration or benefits given by the Employer
• Details of any probationary period, its length and any conditions attached to it
• Details of any mandatory training, provided by the Employer, which the worker must complete, and any mandatory training that is required which the employer will not pay for
• Details of the length of temporary or fixed term work

For existing staff, employers do not have to give them this information straight away. An existing employee can, though, request a Section 1 Statement on or after 6th April 2020 and up to 3 months after their employment ends. If existing employees ask for this statement after April 2020, Employers are obliged to give them this information within one month of the request.

In addition, if there is a change to an employees’ terms and conditions after 6th April 2020 (that are covered by the new Section 1 Statement requirements), they must be informed of this change within one month..

In addition, details of other terms and conditions must be given within two months – they are pensions, collective agreements, additional training and information on disciplinary and grievance procedures. For further details about the new requirements, as it is quite complicated, please go to this link.

More information on notice periods

The legal minimum notice an employee needs to give their employer is one week (after one months continuous service). Often the contract will specify a longer notice period – if it doesn’t, an employee must give a ‘reasonable’ period of notice (one week or above) depending on how long they have been employed and what position they hold (how senior they are). For details of your pay rights during your notice period, go to this link.

A contract should also specify the notice period the employer has to give to end the employee’s employment, or details of the length of the contract if it’s not open-ended/permanent (i.e. it is for a Fixed Term). If an employee is employed on a permanent contract, the employer must give the statutory minimum notice period if the contract doesn’t specify the notice periods they require.

The statutory minimum notice period is one week’s notice if an employee has worked continuously for the employer for between one month and two years, and one week for each completed year of service once they have been employed with them for two years or more – up to a maximum of 12 weeks notice. The contract may specify longer notice periods that the employer will give you to end your employment. To calculate a week’s pay (which you need to do for redundancy payments, holiday pay and pay during notice periods) look at this link

Examples of other items that may be (but do not have to be) included in the written statement:

• Appraisal arrangements
• Trade union membership details
• Health and safety matters
• Lay-offs and short-time working details
• Redundancy policy
• Company vehicles policy
• Expenses policy
• Outside interests – other employment – policies
• Smoking policy
• Restraints following termination (any restrictive covenants in the contract)
• How changes to terms and conditions of employment can be made
• The use of mobile phones policy
• The use of computer facilities including internet and email policies and data protection policy.

What if an employee doesn’t receive a Written Statement?

If they’re not provided with a Written Statement by their first day then our advice would be to first talk to their manager(s), HR department, or Trade Union. If this isn’t successful then an employee’s only recourse is to lodge a claim with an Employment Tribunal that they’ve not received their Written Statement (this is called making a ‘reference’ under the Written Statement Requirements), which is also an ‘automatic’ unfair dismissal reason (as it is a statutory right).

The tribunal will decide what employment particulars they should’ve been given and these will take effect, as if the employer had given them. There can be small financial compensation for employees in these instances at a Tribunal.

Apprenticeships

If you’re an apprentice your contract may be slightly different – see our guide to apprenticeships here.

Additional information about contracts

A contract is an agreement with two or more parties that can be written, oral, implied or a combination of these.

A contract of employment is an agreement between the employer and the employer, that sets out the terms and what you can expect of each other. For more details about ‘express’ and ‘implied’ terms of a contract (and details about the duty of trust and confidence that exists within a contract), see our guide here.

The main elements of a valid contract of service (that employees have) AND a contract for services (that those who are self-employed have) are:

• The intention to enter into legal relations
• The offer (of work) and its acceptance (an agreement)
• Consideration (e.g. in return for doing work/providing a service the ‘worker’ receives payment).

Changing Terms in a Contract (for employees)

Sometimes it may be necessary for your employer to change your terms and conditions of employment; this should normally be after they consult with you (or a recognised Trade Union), explain their reasons and listen to any alternative ideas you may have.

If your employer is trying to change something that is NOT written into your contract then have a look at our article about custom and practice and changing terms and conditions:

• Your employers may have business reasons that mean they need to change your pay (basic rate, overtime, bonus), working location, hours/days of work (see short-time working below), holiday or sick-pay entitlement, your job or its duties and responsibilities. Your employer must have valid business reasons for making any change
• Your contract may also change due to new legislation or regulations.
• Your contract or Company Handbook may include a ‘variation’, ‘flexibility’ or ‘mobility’ clause that allow your employer to make changes if they are reasonable
• Your contract may also change where your employer recognises a Trade Union that has bargaining rights at your workplace and a change has been agreed between your employer and the Trade Union. If you don’t belong to the Union this change will still apply to you and you may not be able to stop this change
• In some circumstances, e.g. after the outcome of a disciplinary hearing, your employer can make changes to your contract i.e. demote you or cut your pay, without your agreement
• Certain changes to a contract can also be seen as an employers prerogative, e.g. making changes to methods of working
• You can also ask to change the terms in your contract e.g. pay (you have no automatic right to a pay rise unless this is written in your contract), different working hours. See our Guide to Flexible Working here
• Changes to your terms and conditions of employment should be put in writing if they alter anything in your written statement of employment
• In theory, changes should generally not be imposed without you, the employee, agreeing and your agreement must be explicit, otherwise your employer may have breached your contract. However, in practice, you may be faced with the choice of accepting the change or losing your job
• Even where changes are agreed there has to be ‘consideration’. Where changes include improvements to the employee’s terms and conditions, that will be the consideration. But where the change is to the employee’s detriment (such as the introduction of restrictive covenants, that prevent the employee for example working for a competitor if they leave) it may be hard to establish ‘consideration’ without for example an accompanying pay rise that is only related to the change (and would not have happened normally) – e..g. there must be evidence that the benefits being given were conditional on acceptance of the covenants (Reuse Collections Ltd v Sendall & May Glass Recycling 2014)
• Employers should ensure they receive a signed copy of the new contract from the employee to confirm the employee has accepted the changes
• If your contract is altered without your consent and you continue working in accordance with the new terms of your contract, without objecting, you will, in time, be seen to have accepted the changes
• If your contract is altered without your consent and you are unhappy with the changes you can make it clear, in writing, that you are working under protest and explain your reasons
• You should then raise a grievance detailing your complaint (you cannot work ‘under protest’ indefinitely without bringing a grievance or making a complaint to an Employment Tribunal). You will then be in a position to bring a claim against your employer for breach of contract and/or, if you have resigned, constructive dismissal although you must make a complaint to a Tribunal within three months of the ‘event’ normally. This is a last resort option so please take advice from the Citizens Advice/ACAS/a legal advisor before bringing any claim/resigning
• If you do not wish to raise a grievance or make a claim to an Employment Tribunal then you may eventually have to accept the changes

Ultimately, if you are unwilling to accept the changes your employer wishes to bring in they may choose to dismiss you and re-hire you on a new contract with the new terms and conditions they wish to implement. As this is a dismissal you could bring a claim for unfair dismissal (whether you accept the offer of re-engagement on the new terms or not) but it is likely that your employer will argue it was a fair dismissal for business reasons.

If your employer can demonstrate that it had a good, sound business reason for making the changes and they followed a fair procedure to introduce these (including appropriate notice periods) and acted reasonably to successfully defend an unfair dismissal claim in these circumstances.

Employers ‘Fire and Rehire’ practices are always in the news and Acas have produced a guide to help Employers to avoid these practices, which you can read here.

This information from ACAS provides a lot more advice about contracts, changing their terms and notice periods.