You must provide new employees and workers with a written statement of employment particulars. This needs to be no later than day one of their employment. If any of the terms in that written statement subsequently change, must you always issue a statement of changes?
Statement of changes
All employees and workers whose contracts start on or after 6 April 2020 must be issued with a written statement of employment particulars by “not later than the beginning of the employment”.
S.1 Employment Rights Act 1996 (ERA) sets out the minimum mandatory content of that written statement. If, subsequently, there are any changes to the mandatory content, under s.4 ERA you would need to provide either an updated written statement of employment particulars (it’s often better to do this if the changes are substantial) or a written statement of changes. This must be given to the employee or worker “at the earliest opportunity and, in any event, no later than one month after the change in question”.
This means that if training entitlement changes, this technique requires a statement of changes, as details of “any training entitlement” is part of the mandatory content. As training needs can change regularly, one solution would be to adopt a pragmatic approach and list just the compulsory training courses in the written statement. State that staff will be provided with further information regarding subsequent training entitlements.
Ensure your statement of changes includes the effective date of the changes.
If you drafted a new template written statement in April 2020, consider whether there have been any changes to the mandatory content since then. especially due to the pandemic. If necessary, refresh your template and issue a statement of changes.
While the written statement may be evidence of what’s been agreed between the parties, it doesn’t necessarily constitute the employment contract. It will only do so if this was the parties’ clear intention. Many employers issue a document that’s clearly identified as the employment contract, incorporating the mandatory content of the written statement and including additional provisions.
Staff employed before 6 April 2020
Although we’ve referred to the rules only applying to contracts starting on or after 6 April 2020, existing employees (but not existing workers) who were employed before that date still had the right to receive a written statement of employment particulars, but with less mandatory content.
Those employees have the right to request an updated written statement that includes the additional mandatory content and, if they do so, you must comply with that request within one month.
Similarly, if there’s a change to any of the terms of their written statement, you must provide a statement of changes – and this includes any changes to the additional mandatory content, even though that additional content isn’t covered in their written statement because it wasn’t mandatory at the time.
Lawful changes to employment terms
The statement of changes is simply evidence of changes to the written statement to ensure compliance with s.4 ERA notification requirements – it doesn’t vary the terms of the employment contract.
You can’t separately impose unfair contractual changes without risking a breach of contract. Unauthorised deduction from wages and/or constructive dismissal claim unless the specific change is expressly authorised by the employment contract itself.
Otherwise, you must go through a process of seeking the employee’s written consent to the change.