‘Day One Rights’. Section 1 and the Good Work Plan

The contract of employment both creates and governs the relationship between employer and employee so it’s surprising that it was not until 1963, with the introduction of the Contracts of Employment Act, that employees were given the legal right to written particulars of employment.

This right then evolved into what is now S.1 of the Employment Rights Act 1996, with the qualifying length of service period increasing from the original 5 weeks to the current 8 (or 4 weeks if employment ends before 8 weeks).

Although the introduction of this right was a major step forward in employment rights and the proposed reduction of the requisite continuity to 1 day from 6^th April next year is seemingly another positive step, it remains a right that is often difficult to enforce and with limited remedies when breached.

Until the introduction of S.38 of the Employment Act 2002 the only legal action open to an employee for breach of S.1 was that afforded by S.11 of the ERA 1996. This allows an employee to ask an Employment Tribunal to determine what written particulars were intended in line with evidence and arguments put forward by both parties. Though this can be quite useful where there is a dispute as to terms of the contract which, once clarified, can support an associated claim, for instance the eligibility for/amount of a bonus, contractual leave etc, making use of the S.1 rights in the absence of a claim that might flow from the determination is a paper exercise only. 

S.38 at least created a financial incentive for employers to comply with their obligations.

But no general solution to this situation is provided by the S.38 remedy in that it is not a ‘free standing’ claim, that is, in order to be granted the award (equivalent to 2 to 4 weeks wages) a breach of S.1 must be part of at least one other successful claim, for instance: wages, discrimination, dismissal etc. Consequently the S.1 right is of very little practical use in encouraging employers to honour that right when asserted in isolation.

Underpinning this right with an award that could be sought without being part of a larger claim is not however something that the current government has included in the draft legislation that implements its Good Work Plan. Neither is there mention of how the ‘day one’ right to a S.1 statement will be any easier to enforce under S.38. I do not imagine that the current government intends to encourage Claimants to take action against their employer after ‘day one’ or even week one of working without written particulars, yet even with the obstacles outlined above, this is a possibility. Unfortunately, S.38 in its current form may actually work against such a claim in that a Tribunal can choose not to make an award if it believes that to do so would be ‘unjust or inequitable’ (S.38(5)). Taking into account the fact that employers are currently given up to 2 months to provide the particulars it would seem logical that the less time the Claimant gives the employer to meet its S.1 obligation, the more likely it is that a Tribunal would deem it ‘unjust or inequitable’ to make a S.38 award.

Consequently, the irony of making the S.1 right ‘a Day One Right’ without any changes to support that right runs directly counter to the assurances set out in the Good Work Plan. Within the “Good Work - A response to the Taylor Review of Modern Working Practices” we are told “when a worker’s rights are breached’ the reforms will provide “quick and effective redress” (p16) I would argue that the ‘reform’ to S.1 rights will provide neither. 

Christina Moore - Morrish Solicitors

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