An agency worker’s right to equal treatment in relation to the ‘duration of working...
Written particulars of employment
Stefanko v Maritime Hotel Ltd
An employee with at least one month’s - but less than two months’ - continuous employment had a right to a written statement of employment particulars.
All employees who are engaged for a month or more must be given a written statement setting out the key terms and conditions of their employment (s. 1 of the Employment Rights Act 1996). The information can be set out in more than one document including an offer letter but, it must be provided within two months from the date the employee starts work.
Unless an employer can demonstrate that there are exceptional circumstances, employees could be entitled to an award of between two and four weeks’ pay if their employer fails to provide them with a written statement of employment particulars or of any changes to their terms of employment (s. 38 of the Employment Act 2002).
The three claimants (of Polish origin) were all employed as waiting staff by the Maritime Hotel. All had relatively short periods of employment starting on various dates from 21 April 2016. All three were dismissed on 7 July 2016 when they objected to ‘persistent shortfalls in their wages, late payment and a falsification of their wage slips’.
All three successfully complained they had been automatically unfairly dismissed because they had asserted a statutory right. But only the two staff who had worked for over two months received four weeks’ pay as additional compensation because they had not received a s. 1 statement. The tribunal held that the waitress who had worked for only six weeks (Ms Woronowicz) was not entitled to compensation even though she hadn’t received a statement because the employer had two months to provide this. She appealed.
The EAT upheld her appeal.
Section 2(6) of the Employment Rights Act states that the right to a statement of employment particulars exists even if a person’s employment ends before the two months are up. Ms Woronowicz was therefore entitled to one, and an increased award.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0024_18_2509.html
This is a useful reminder to employers who engage staff on relatively short-term contracts (for instance in the retail and hospitality sectors) of their statutory obligations.
Currently it’s only ‘employees’ who have a right to a s. 1 statement. However, from 6 April 2020, this will change and employers will have to provide information about the terms and conditions of employment to all staff (including workers) from Day 1 of their employment.