Written Statements, contracts, and changing terms in your contract

All PAYE employees and PAYE casual workers are legally entitled to a Written Statement, which they must receive before they start work, or, at the latest, on their first day of work (in Northern Ireland only employees - not workers - are legally entitled to a Written Statement, within 2 months of starting work).

This statement is a summary in writing of your main terms and conditions of employment. It’s not itself a contract of employment but is evidence of the contract of employment (and confusingly, for many employees, it’s combined within their actual contract).

What is a contract of employment?

A contract of employment is a legally binding agreement between an employer and employee, which is formed when you agree to work for an employer in return for pay. It may be made orally, but should be in writing to avoid dispute.

Your contract contains your rights and duties, and the rights and duties of your employer – called the ‘terms’ of the contract. Some of the main particulars of employment must be put in writing, i.e. in a written statement.

What should be included in a Written Statement?

The right to a written statement comes from Section 1 of the Employment Rights Act 1996 (ERA), as amended, and is sometimes called a Section 1 statement. The written statement must include:

• Your name and the address of your employer
• The date your employment and continuous employment began
• Your job title and job description
• Your job location
• Your pay details
• Your working hours
• Your holiday entitlements and rest breaks (under the Working Time Directive Legislation)
• Your sick pay entitlement and notification time-scales (or where this information can be found)
• Details of any pension scheme which your employer operates
• The notice periods you need to give to end your employment if you want to resign and the notice period your employer has to give you to end your employment. See below for more information on notice periods
• Your employer’s disciplinary rules and procedures, appeal rules, grievance procedures and details of any collective agreements your employer has with Trade Unions that directly affect your conditions of employment (or information about where these details can be accessed)
• Information relating to work to be undertaken outside of the UK (for longer than one month).

In addition to the current requirements for a Section 1 Statement (Written Statement), from April 2020 employees and workers (in England, Wales and Scotland) will also need to know:

• The days of the week they are required to work
• Whether the working hours or days are variable, and if they are variable details of how they will vary
• Any entitlement to paid leave, including maternity leave and paternity leave (or details about where this information can be found)
• Any other remuneration or benefits given by the employer
• Details of any probationary period, its length and any conditions attached to it
• Details of any mandatory training, provided by the employer, which the worker must complete, and any mandatory training that is required which the employer will not pay for
• Details of the length of temporary or fixed-term work.

For existing staff, employers do not have to give them this information straight away. An existing employee can, though, request a Section 1 Statement on or after 6th April 2020 and up to three months after their employment ends. If existing employees ask for this statement after April 2020, employers are obliged to give them this information within one month of the request.

In addition, if there is a change to an employees’ terms and conditions after 6th April 2020 (that are covered by the new Section 1 Statement requirements), they must be informed of this change within one month.

In addition, details of other terms and conditions must be given within two months – they are pensions, collective agreements, additional training and information on disciplinary and grievance procedures. For further details about the new requirements, as it is quite complicated, please go to this link.

More information on notice periods

The legal minimum notice you need to give your employer is one week (after one months continuous service). Often your contract will specify a longer notice period – if it doesn’t, you must give a ‘reasonable’ period of notice (one week or above) depending on how long you have been there and what position you hold (how senior you are). For details of your pay rights during your notice period, go to this link.

A contract should also specify the notice period your employer has to give you to end your employment, or details of the length of your contract if it’s not open-ended/permanent (i.e. it is Fixed Term). If you’re on a permanent contract, your employer must give you the statutory minimum notice period if your contract doesn’t specify the notice periods they require.

The statutory minimum notice period is one week’s notice if you have worked continuously for your employer for between one month and two years, and one week for each completed year of service once you have been employed with them for two years or more – up to a maximum of 12 weeks notice. Your contract may specify longer notice periods that your employer will give you. To calculate a week’s pay (which you need to do for redundancy payments, holiday pay and pay during notice periods) look at this link

Examples of other items that may be (but do not have to be) included in the written statement:

• Appraisal arrangements
• Trade union membership details
• Health and safety matters
• Lay-offs and short-time working details
• Redundancy policy
• Company vehicles policy
• Expenses policy
• Outside interests – other employment – policies
• Smoking policy
• Plant and tools policy
• Restraints following termination (any restrictive covenants in your contract)
• How changes to terms and conditions of employment can be made
• The use of mobile phones policy
• The use of computer facilities including internet and email policies and data protection policy.

What if you don’t receive a Written Statement?

If you’re not provided with a Written Statement by your first day then our advice would be to first talk to your manager(s), HR department, or your Trade Union if you’re a member. If this isn’t successful then your only recourse is to lodge a claim with an Employment Tribunal that you’ve not received your Written Statement (this is called making a ‘reference’ under the Written Statement Requirements), which is also an ‘automatic’ unfair dismissal reason (as it is a statutory right).

The tribunal will decide what employment particulars you should’ve been given and these will take effect, as if your employer had given them to you. There can be small financial compensation for employees in these instances at Tribunal.

Apprenticeships

If you’re an apprentice your contract maybe slightly different – see our guide to apprenticeships here.

Additional information about contracts

A contract is an agreement with two or more parties, that can be written, oral, implied or a combination of these.

A contract of employment is an agreement between you and your employer. There’s always a contract between you and your employer, even if you do not have anything in writing, because you’ve agreed to work for your employer in return for them paying you. The terms of an employment contract set out what you and your employer have agreed and what you can expect of each other; your rights and duties. For more details about ‘express’ and ‘implied’ terms of a contract (and details about the duty of trust and confidence that exists within a contract), see our guide here.

The main elements of a valid contract of service (that employees have) AND a contract for services (that those who are self-employed have) are:

• The intention to enter into legal relations
• The offer (of work) and its acceptance (an agreement)
• Consideration (e.g. in return for doing work/providing a service the ‘worker’ receives payment).

When agreeing to a contract if you are self-employed – be clear of the services that you are carrying out and the timescales. The contract is the legal document but it can be supported by other documents that are referred to in it, these include:

• The proposal – shows your complete understanding of the client’s requirements and the action that you will take to deliver the work
• The schedule – the agreed start and delivery dates and any progress points in between
• You may have standard terms and conditions under which you operate e.g. cancellation terms, copyright ownership issues
• More information about your company status and IR35
• More information about legal cover and contracts for freelancers
• More information notice periods in freelance contracts
• You can read what rights you have if your client cancels your contract here.

Changing Terms in a Contract (for employees)

Sometimes it may be necessary for your employer to change your terms and conditions of employment; this should normally be after they consult with you (or a recognised Trade Union), explain their reasons and listen to any alternative ideas you may have.

If your employer is trying to change something that is NOT written into your contract then have a look at our new article about custom and practice and changing terms and conditions:

• Your employers may have business reasons that mean they need to change your pay (basic rate, overtime, bonus) working location, hours/days of work (see short-time working below), holiday or sick-pay entitlement, your job or its duties and responsibilities. Your employer must have valid business reasons for making any change
• Your contract may also change due to new legislation or regulations (for example the furlough regulations introduced in 2020 because of the coronavirus pandemic)
• Your contract or Company Handbook may include a ‘variation’, ‘flexibility’ or ‘mobility’ clause that allow your employer to make changes if they are reasonable
• Your contract may also change where your employer recognises a Trade Union that has bargaining rights at your workplace and a change has been agreed between your employer and the Trade Union. If you don’t belong to the Union this change will still apply to you and you may not be able to stop this change
• In some circumstances, e.g. after the outcome of a disciplinary hearing, your employer can make changes to your contract i.e. demote you or cut your pay, without your agreement
• Certain changes to a contract can also be seen as an employers prerogative, e.g. making changes to methods of working
• You can also ask to change the terms in your contract e.g. pay (you have no automatic right to a pay rise unless this is written in your contract), different working hours. See our Guide to Flexible Working here
• Changes to your terms and conditions of employment should be put in writing if they alter anything in your written statement of employment
• In theory, changes should generally not be imposed without you, the employee, agreeing and your agreement must be explicit, otherwise your employer has breached your contract. However, in practice, you may be faced with the choice of accepting the change or losing your job
• Even where changes are agreed there has to be ‘consideration’. Where changes include improvements to the employee’s terms and conditions, that will be the consideration. But where the change is to the employee’s detriment (such as the introduction of restrictive covenants, that prevent the employee for example working for a competitor if they leave) it may be hard to establish ‘consideration’ without for example an accompanying pay rise that is only related to the change (and would not have happened normally) – e..g. there must be evidence that the benefits being given were conditional on acceptance of the covenants (Re-Use Collections Limited v Sendall & May Glass Recycling 2014)
• Employers should ensure they receive a signed copy of the new contract from the employee to confirm the employee has accepted the changes
• If your contract is altered without your consent and you continue working in accordance with the new terms of your contract, without objecting, you will, in time, be seen to have accepted the changes
• If your contract is altered without your consent and you are unhappy with the changes you can make it clear, in writing, that you are working under protest and explain your reasons
• You should then raise a grievance detailing your complaint (you cannot work ‘under protest’ indefinitely without bringing a grievance or making a complaint to an Employment Tribunal). You will then be in a position to bring a claim against your employer for breach of contract and/or, if you have resigned, constructive dismissal although you must make a complaint to a Tribunal within three months of the ‘event’ normally. This is a last resort option so please take advice from the Citizens Advice/ACAS/a legal advisor before bringing any claim/resigning
• If you do not wish to raise a grievance or make a claim to an Employment Tribunal then you may eventually have to accept the changes

Ultimately, if you are unwilling to accept the changes your employer wishes to bring in they may choose to dismiss you and rehire you on a new contract with the new terms and conditions they wish to implement. As this is a dismissal you could bring a claim for unfair dismissal (whether you accept the offer of re-engagement on the new terms or not) but it is likely that your employer will argue it was a fair dismissal for business reasons.

If your employer can demonstrate that it had a good, sound business reason for making the changes and they followed a fair procedure to introduce these (including appropriate notice periods) and acted reasonably to successfully defend an unfair dismissal claim in these circumstances.

Employers ‘Fire and Rehire’ practices have been in the news a lot in 2021 and Acas have produced a guide to help Employers to avoid these practices. You can read the guidance here. A fter the 2022 scandal of P&O Ferries sacking 800 staff instantly, the Government said they will produce a new statutory code on the practice of ‘fire and rehire’, which intends to “clamp down on controversial tactics used by unscrupulous employers who fail to engage in meaningful consultations with employees”. We must wait to see what this actually achieves. The Government will not legislate further in this area; a statutory code does not impose legal obligations but helps explain the legal obligations under the current legislation. Tribunals take into consideration the code when considering any claims from employees..

In an interesting development in February 2021, the Scottish Court of Session, told Tescos that it could not terminate employees contracts and rehire them on lower pay - called ‘fire and rehire’ tactics.  The Court of Session issued a temporary injunction on Tesco, prohibiting it from withdrawing entitlement to ‘retained pay’ (that was agreed before 2010 to allow them to relocate workers rather than make them redundant; the ‘retained pay’ was agreed as a permanent feature of each employee’s contract while they were employed by Tesco) and prohibiting them from terminating workers’ contracts at Tesco’s Livingston distribution centre, in order to re-engage them on new terms and conditions that did not include retained pay.

Usdaw, the union representing the Livingston workers, said that some staff were being forced onto new contracts that would result in them losing between £4,000 to £19,000 per year! Tesco will challenge the ruling, so we wait to see what happens next.

The judgement applies only to the Livingston site, although Usdaw said it would continue to fight for workers in the Litchfield, Daventry clothing and Avonmouth Tesco distribution centres. Usdaw also said it would be seeking “a permanent interdict for Livingston and a High Court injunction for the other sites to defend this unfair pay cut for hundreds of key workers.”

February 2022 update: The High Court of England has also now granted an Injunction against Tesco to stop the same ‘fire and rehire’ practices, in Usdaw and others v Tesco Stores Ltd.  This means that Tesco cannot terminate an employee’s contract with notice for the purpose of offering the employee re-engagement on another contract that removes or diminishes the ‘retained pay’; or withdraw or diminish the Retained Pay of any affected employee.  The High Court has also refused Tesco’s permission to appeal the ruling. However, in July 2022, the Court of Appeal overturned this decision and decided that Tesco’s was entitled to dismiss and offer to re-engage staff on new terms to remove the Retained Pay it had originally said was ‘permanent’.

Although the facts of the case were very unusual (the ‘retained pay’ was described as permanent in the contract), this means that going forward employees who are members of a Trade Union may now have another way of fighting ‘fire and rehire’ tactics, i.e. by applying to the High Court to grant an injunction to stop their employer proceeding with these tactics. This document from ACAS provides a lot more advice about contracts, changing their terms and notice periods. Acas have also produced a new guide to ‘Fire and Rehire’ practices, which have been in the news a lot in 2021, to help Employers to avoid these practices.  You can read the guidance here.

Information about Short-Time Working (for employees)

During a down-turn in work, rather than make redundancies, your employer may choose to make other changes to your employment contract. An option they may have to consider is short-time working. This is when your hours of work are reduced (by reducing the number of days per week you work, or the hours per day you work) by more than 50%, and your pay is reduced accordingly.

This change can be imposed on you only if there is a contractual right to do so (i.e. it is already written in your contract) or a collective agreement (with a Union) to do so. If neither of these exist your employer should consult with your (or your Union representatives) about why this change is necessary, with a view to seeking consent.

If the change of hours is imposed on you without agreement, you may be able to make a claim at Employment Tribunal for:

• Unlawful deduction of wages
• Unfair dismissal
• Breach of contract.

If you are put on short-time working you may be entitled to claim:

• Pay if there is a contractual entitlement to this
• A ‘guarantee’ payment (which employers are obliged to pay under law – this is £30 per day (for 2020) for up to a maximum of five days pay in a three month period)
• Jobseekers allowance
• Any benefits, such as a company pension you are paying into, are likely to be reduced by short-time working
• If your hours are reduced to the level where you receive less than half a weeks pay for four consecutive weeks (or for six weeks out of 13 weeks) you can give your employer written notice that you intend to claim a redundancy payment. If you’re going to be subject to short-time working we would recommend you take advice from a Union representative or the Citizens Advice Bureau.

You can read more details in our new guide to short-time working and layoffs here.

Borrer v Cardinal Security Ltd case study

In an interesting 2013 case, Borrer v Cardinal Security Ltd, Borrer was a Security Guard for Cardinal Security for four years. His main place of work was at Morrisons in Brighton, where he worked for two years on a regular 48 hour week. His Contract with Cardinal (which could be described as a zero-hours contract) didn’t specify his hours of work but said “your working hours will be specified by your line manager”.

When working at Morrisons Brighton he was informed about his hours of work by text message from his manager or by contacting the control centre. In October 2011 Morrisons made a complaint about Borrer and requested that he be moved from the Brighton store (as they were entitled to under the contract with the security company).

Mr Borrer worked for other clients and a few weeks later was offered a full-time position with Morrisons Seaford store, where he worked for the next few weeks The Manager of the Seaford store was also unhappy with him and eventually Cardinal found him shifts at another of their clients. Borrer told Cardinal he was resigning because he wasn’t being offered enough hours – during that conversation he was offered a full-time position of 38 hours per week at another store in Brighton. A week later he wrote to Cardinal confirming his resignation, claiming Cardinal were in breach of contract and rejecting their statement he was on a zero-hours contract.

The original Employment Tribunal found that there was nothing to imply that he worked a fixed number of hours per week (48) and there was no breach of contract, so he couldn’t claim unfair constructive dismissal. The Employment Appeal Tribunal allowed the appeal and found that Borrer had been contractually entitled to work his claimed 48 hours per week (and there was no doubt he was an employee).

If you are an employer and need ongoing professional help with any staff/freelance issue then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.