Employment Issues for Immigration Practitioners

Since April 2020, under Section 1 of the Employment Rights Act 1996 (ERA) all employees and workers are required to be provided with a written statement of particulars on day one of their employment.  As of that date, the information required became considerably more detailed, applied to workers, not just employees and on the first day of the engagement. This is commonly referred to as a ‘Section 1 Statement’, and must include the following: the identity of employer and worker; the date on which the work began; the length of any notice period; how much the worker will be paid and when; the days of the week the worker is required to work; whether the working hours are variable and how any variation will be determined; any other benefits provided by the employer that are not already included in the Statement; any probationary period, including any conditions and its duration; and any training entitlement provided by the employer relating to mandatory training that the worker must bear the cost of. Also, particulars that must be contained either in the Statement or in a reasonably accessible document referred to in the Section 1 Statement are any terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay, any terms relating to any paid leave (such as family-related leave), and any terms relating to non-compulsory training. Finally, any terms relating to pensions and pension schemes must be provided within 2 months of starting work.

Where there are no particulars for any of the matters listed above, the section 1 Statement needs to state that fact.

Section 4 ERA

In terms of secondment, an employer must also be aware of Section 4 of ERA which requires the employer to issue the worker with a statement detailing how any of the particulars required by Section 1 have changed, which will of course often be the case in any secondment situation. The Section 4 Statement must be issued at the earliest opportunity and, in any event, no later than one month after the change.

Remedies for Non-Compliance

If an employer fails to provide a Section 1 or Section 4 Statement within the permitted timeframe (or provides a statement that does not include all of the required information), the employee or worker will be entitled to ask an Employment Tribunal to make a determination of what their particulars are. Their terms will then be deemed to include the Employment Tribunal’s additions and/or alterations. The amount of compensation payable in these circumstances will be two or four weeks’ pay (subject to the statutory cap on a week’s pay), depending on what the Tribunal considers is just and equitable in the circumstances.

Article by

Jane Brown, Solicitor