In December 2018, the Government published its Good Work Plan following the 2017 Taylor Review of modern working practices.
This introduces a series of changes to enhance rights enjoyed by employees and workers under existing legislation. In particular, the Taylor Review identified that some individuals (particularly workers) are currently left without transparent information regarding their working arrangements.
As a result, new regulations will come into force on 6 April 2020:
- the current right for employees to receive a written statement of the key particulars
- of their employment will be expanded to apply to workers;
- the right to receive the written statement will apply from day 1 of employment/engagement, rather than within two months as is currently the case; and
- additional information will need to be included, over and above the existing requirements.
The current right under section 1 of the Employment Rights Act 1996 is familiar and not particularly burdensome. It applies to employees only and the information required can be provided easily and with little formality. Employers can allow the employee to settle in, make small adjustments to the role and iron out any teething problems prior to complying with the generous time limit to issue a statement of particulars. In contrast, the new requirements will be considerably more challenging for employers.
As part of the expanded right, the new information to be specified within the particulars includes, (non-exhaustively): information relating to how long the job is expected to last, any probationary period, provisions in relation to certain types of leave, and specific days and times of work. More of the information is to be provided within a single document, with just a few exceptions including provisions relating to pensions, collective agreements and training entitlements which can be provided separately or in instalments.
Employers may take some reprieve, though: the right to claim and receive up to four weeks’ gross pay as compensation for failing to provide the required statement of particulars will not be enhanced. Similarly, the ability to bring a claim in relation to any failure to comply remains confined to a ‘piggyback’ claim – meaning workers or employees can only pursue it alongside another substantive claim in the employment tribunal, rather than on a standalone basis.
Rather than having the freedom to issue a statement of particulars after employment commences, it will be important to start preparations for the provision of the new statements during the recruitment process. It would be sensible to have an outline statement prepared that is based on the role so this can be easily deployed as soon as an individual starts with the organisation.
Employers or HR departments should also check their existing template documents to make sure they provide for each element required under the expanded right.
Who is a worker?
Status is a hot topic in the employment sphere, with many high profile cases reaching the courts and the rules being shaped by a tapestry of case law.
In general, a ‘worker’ sits somewhere between an employee and genuinely self-employed contractor. Unless you are entirely satisfied that an individual is in business on their own account and that you are their customer, it will be prudent to treat that individual as a ‘worker’ and provide them with a statement when the new rules come in.
Whilst many employees will already be in receipt of the new information as part of the employer’s standard contract of employment, the challenge for employers will be providing the statements to workers without inadvertently labelling them as ‘employees’. It will be important to distinguish workers to ensure that only true employees benefit from specific employee protections (e.g. the right to bring a claim for unfair dismissal). As a result, employers should consider adopting separate template particulars depending on whether an individual is a worker or an employee. A single document that tries to cover both eventualities is almost guaranteed to create confusion and uncertainty.
What about existing employees and workers?
Only new employees and workers who start on or after 6 April 2020 will be entitled to receive the enhanced particulars. Employers will not have to issue updated particulars to existing employees, although they are entitled to request them if they wish, in which case the employer must comply. In contrast, no such right to request will apply to existing workers. However, if existing workers do not have any contractual terms in place then it would make considerable sense to issue them with new worker particulars to reduce the risk of disputes at a later stage.