The starting point for successful employee relations is knowing exactly where everyone stands with an employment contract.
For this reason, Section 1 of the Employment Rights Act 1996 requires employers provide staff with a written statement of the particulars of their employment within their first two months of work.
But what if someone isn’t given a contract and is dismissed short of the two months? This was the question dealt with by the Employment Appeal Tribunal in the case of Stefanko and Others v Maritime Hotel Limited.
Miss K Stefanko along with two other Polish nationals, were all employed to work at the hotel commencing their employment on various dates after 21 April 2016 until their dismissal on 7 July 2016. Two of the claimants had completed more than eight weeks of employment by the time of their dismissal. Miss Stefanko had completed six weeks of employment.
The three Claimants issued proceedings in the Employment Tribunal (ET) for automatic unfair dismissal, discrimination and the respondent’s failure to provide written statements of the particulars of their employment.
What happened at Tribunal?
The Tribunal held that the hotel had failed in its obligation towards the two claimants who had completed more than two months’ employment but not towards Miss Stefanko.
“The obligation under Section 1 of ERA is to provide such particulars not later than two months after the beginning of the employment.”
Where an employer fails to provide the written statement the Tribunal can award the employee either two or four weeks’ pay as additional compensation.
The claimant appealed the Tribunal’s decision.
Why did she win on appeal?
The Employment Rights act provides that sections 1-7 of the Act do not apply to an employee if his or her employment continues for less than one month. So, as Miss Stefanko’s continuous service lasted six weeks, she was unaffected by that provision.
The Employment Appeal Tribunal held that the obligation to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month.
The Employment Appeal Tribunal went on to say:
“It goes without saying that whilst sections 1 to 7 and 198 of ERA represent the minimum floor of legal rights, it is best practice for the written particulars to be provided as soon as possible to protect both parties and in order to minimise risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship.”
You can read the full judgment here.
What should employers learn from this?
There is one easy lesson – give your employees properly drafted contracts of employment within two months of the start of their employment or face the penalty of an award of up to £2,100 for each employee.
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