documenting the contract

Consequence of failure to provide 

If an employer fails to provide the required information, the employee is not entitled to compensation for that failure alone, although he or she can ask an employment tribunal to rule on what the information should have been. However, if the employee succeeds in some other claim to a tribunal, such as an unfair dismissal or unlawful deductions claim, and the tribunal also finds that the employer has not met its obligation to provide the information, the tribunal must award the employee between two and four weeks’ pay as compensation for that failure.

Timing 

The information must be given to every employee who is with the company for one month or more, and must be supplied not later than two months of the employment beginning. If the employee is due to work outside the UK for more than a month within two months of starting work, then the information must be supplied by the time the employee leaves the UK.

Status of statement

The information is not in itself a contract of employment, it is merely the employer's version of the contract's terms. So a company cannot assume that the employee agrees that the written information it provides accurately reflects the contract's terms, unless the employee has expressly said so. This is one reason why some companies choose to offer new recruits the job on the basis of a written contract of employment or offer letter that includes all the details that need to be included in the written information, thereby meeting their obligation to provide the information and ensuring that the terms are agreed.

Employees must be provided with information on some terms, such as disciplinary procedures, that the employer may not intend to be part of their contract of employment. A company that is meeting its obligation to provide information by issuing a written contract will therefore need to make clear which terms, if any, are not contractual.

Content

The law lays down in detail what terms should be included in the written information and how those details should be provided. If any of this information changes, the employer must notify the employee (documenting change). (A model statement of terms and conditions is set out elsewhere in this Guide (model documents)).

The information that an employer must provide is listed below. The details should be accurate as at a specified date not more than seven days before the information is given. If there are no relevant details to give, then the information should make that clear. For example, if the employer does not provide a pension, the information should say so.

1. The names of the employer and the employee.
2. The date the employee's employment began.
3. The date the employee's period of continuous employment began. This may need to take into account any previous employment with the same company or with another employer that counts towards the employee's continuous employment (calculating continuous employment).
4. If the employment is not intended to be permanent, the period for which it is expected to continue. This might be, for example, until a specific task is completed or until a specified event occurs.
5. If the employment is for a fixed term, the date when it is to end. Employment is for a fixed term if it is possible to identify at the time when the contract begins the exact date on which it will end.
6. The employee's job title and/or a brief description of his or her work.
7. The scale on which or rate at which the employee is paid, or the method of calculating pay. This may involve, for example, giving details of any piecework scheme and overtime or bonus payments.
8. The intervals at which the employee is paid. This is likely to be either weekly or monthly.
9. Any terms and conditions relating to hours of work, including normal working hours. This should include not only the number of hours but also when they are worked, including details of any shift system or flexitime. Details of overtime arrangements should also be given.
10. The employee's place of work. If the employee is required or permitted to work at various places, then that should be stated and the employer's address should be given.
11. Any terms and conditions relating to holidays, including public holidays, and holiday pay. The details must be sufficient to enable the employee's entitlement, including entitlement to accrued holiday pay on termination of employment, to be precisely calculated.
12. Any terms and conditions relating to incapacity for work due to sickness or injury, including details of any sick pay scheme that the company operates.
13. Any collective agreements that directly affect the terms and conditions of the employment, including, where the employer is not a party to a collective agreement, the persons by whom the agreement was made. This will entail listing the dates, title or subject matter and parties to any domestic, local or national collective agreements dealing with terms and conditions that are incorporated into the employee's contract.
14. If the employee is required to work outside the UK for more than one month:
    - the period for which he or she is to work outside the UK;
    - the currency in which he or she is to be paid while working outside the UK;
    - any additional remuneration payable to the employee, and any benefits to be provided to or in respect of him or her, because he or she is required to work outside the UK;
    - and any terms and conditions relating to the employee's return to the UK.
15. The length of notice the employee is obliged to give and entitled to receive to terminate his or her contract.

The information must also include a note of the following:

Notes to be included

• Any disciplinary rules that apply to the employee, and reference to any procedures relating to discipline or dismissal. This may include reference to a redundancy procedure and any other procedure providing for dismissal, as well as to the disciplinary procedure. (All these procedures will need to comply with the statutory minimum dismissal procedure ( minimum dismissal procedures ). The note should refer to the person to whom the employee can apply if dissatisfied with any decision to discipline or dismiss him or her, identified by job title or by name or in some other way. The way in which the appeal should be made must also be specified. Details should also be given of any steps that follow on from the appeal. Disciplinary rules and procedures relating to health and safety issues do not need to be included.
• The person to whom the employee can apply with any grievance relating to his or her employment, identified by job title or name or in some other way. The manner in which the application should be made - which would normally be in writing - should also be specified, as should any steps that follow on from the application. Details on how to lodge grievances relating to general health and safety issues need not be included, but, if the company has a harassment or bullying and harassment procedure, reference should be made to this.
• Any terms and conditions relating to pensions and pension schemes, including a statement of whether a contracting-out certificate under the Pension Schemes Act 1993 is in force in respect of the employment ( The State Second Pension and 'contracting out' ).

Format

The information can be given in any form, provided it is in writing. It could, for example, be set out in an offer letter, a contract of employment or a dedicated statement. The legislation does, however, lay down some rules on the format in which the information must be provided. Some of the most important aspects must be covered in a single statement. These are:

• the names of employer and employee;
• the date employment and continuous employment began;
• terms on pay and the intervals at which it is paid;
• terms on hours of work and holidays;
• the job title and/or description; and
• the place of work.

Although these details need to be brought together in a single statement, that requirement could be met by stapling separate documents together. The other information can be given in separate instalments if the company so chooses.

Other documents

For certain details, the written information can refer the employee to other documents, if the company so chooses. These details are:

• sick leave and pay;
• pensions;
• disciplinary rules; and
• disciplinary, dismissal and grievance procedures.

However, this option is available only where the other documents are reasonably accessible to the employee, either because he or she has a reasonable opportunity of reading them in the course of employment or in some other way. Referring the employee to a pension scheme booklet that is pinned to a notice board or kept in the personnel department at the employee's workplace might be acceptable. Referring the employee to documents kept at head office 20 miles away would not, unless, for example, the document was also available on an office intranet to which the employee had access while at work.

For details of terms on notice, the company may choose to refer the employee to the law (the Employment Rights Act 1996 lays down minimum periods of notice (minimum notice periods ) or to a collective agreement that is reasonably accessible to the employee.