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Question 4 – The five most common HR questions we’re asked.

Question 4 of our 5 part series is:

Do I need to give an employee a written contract of employment?

Under the Employment Rights Act 1996 you need to provide a written statement of particulars to an employee within two months of their commencement of employment with you. If this is not provided and an employee does not receive a satisfactory response from their employer they can seek redress through an Employment Tribunal. Compensation is usually between 2 to 4 weeks’ pay.

The minimum requirements of a written statement of particulars are the following:-

  • The names of the employer and employee
  • The date the employment began
  • The date continuous service started (this may be the same as the date the employment began in most cases. However, in a transfer of undertakings employment with a previous employer will count)
  • The pay rate and/or way of calculating it
  • The date and method by which payment of salary/wages is made
  • Hours of work
  • Holiday entitlement
  • What happens when you are sick or incapacitated? Entitlement to sick pay
  • Pension and pension scheme
  • Notice required from both parties to end the contract
  • Job title
  • Whether the job is intended to be permanent or not (if fixed term, an end date)
  • Place or places of work
  • Any collective agreements (these are agreements that you may have in place with a recognised trade union)
  • If the employee is required to work outside of the UK for more than a month
    • How he/she will be paid (currency)
    • The period for which he/she will be required to work abroad
    • Any terms and conditions relating to his/her return to work in the UK
    • Any benefits payable for working outside of the UK

So what is the difference between a written statement of particulars and an employment contract? Very little, the written statement of particulars is the basis of an employment contract but an employer may want to have more than a written statement of particulars that go over and above to protect his/her business activities.

For example, if a company was to employ a sales person it would be normal for that employee to have access to sensitive client information. Therefore an employer may want to have the option to put an employee on garden leave if they resign due to a job offer with a competitor. The employer may also include a number of restrictive covenants to prevent the employee from revealing sensitive information to its new employer.

Any restrictive clauses need to be sensible and the employer needs to be able to prove they are relevant and not just put them in place for all employees. Basically restrictive clauses which are too restrictive are likely to be unenforceable particularly if they affect an employees’ employability or ability to practise their skills. For example, hairdressers are often restricted from setting up within a 2 mile exclusion zone from their current employer and are not able to contact their current client base, which would seem fair in a local area not dominated by salons; however this may be difficult to enforce in a city centre where competition would be greater anyway.

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