Myth: There is no contract of employment if there’s nothing in writing
Employees have an agreement with their employer, even if they have never received a written contract of employment.
At its most basic, the employee turns up for work at their place of work, does the job their employer asks them to do, finishes work at a specific time and gets paid for their work, either weekly or monthly, at a rate of pay which has been agreed at the outset of the relationship. Also, if there’s nothing in writing, an employee is entitled to a reasonable period of notice should the employment be terminated.The relevant period of notice will be determined by looking at the notice period to which other employees doing the same role or of a role of similar status are entitled to. This could have unintended consequences for an employer, particularly for example, should the employment be terminated during a probationary period when an employer might want the flexibility to terminate on a much shorter period of notice.
Even a verbal agreement can be enforced by the employee in the courts or tribunal.
To avoid these unintended consequences, and to comply with their statutory obligations, an employer should issue all employees, whose role is intended to last for 1 month or more, what is referred to as “a written statement of employment particulars” (as required by section 1 of the Employment Rights Act 1996). This is required to be done within 2 months of starting employment and applies even though the employer may require the employee to undergo a probationary period before confirming their employment.
The terms required by section 1 cover: employer’s name, job title, start date, continuous employment date, place of work, hours of work, pay – how much and when paid, holiday, sickness and sick pay, notice periods and termination, notes about disciplinary and grievance procedures, pension provision, the duration if the work is temporary or the end date if the role is on a fixed term contract, any requirement to work abroad for more than one continuous month and, if so, the specific terms which apply to that work and any applicable collective agreements (for certain industry sectors).
An employee cannot bring a tribunal claim solely on the basis that their employer has failed to provide them with a written statement but can combine such a claim with a claim of, for example, unfair dismissal. In those circumstances, an Employment Tribunal can award the employee between 2 and 4 weeks’ gross pay for failing to provide them with a section 1 statement or to provide them with some of the required particulars.