What can an employee do if his or her employer fails to provide a written statement of employment particulars?
Where the employer does not provide a written statement of employment particulars or provides one that does not comply with the requirements, the employee may refer to a tribunal to determine what particulars ought to have been included or referred to in the statement. Once the tribunal has determined this, the statement will be deemed to have been given to the employee by the employer in accordance with the tribunal's decision. There is, however, no financial compensation for a stand-alone claim.
Under s.38 of the Employment Act 2002, if an employee brings a separate specified claim against the employer and is successful in this claim, where there is also a breach of the written particulars requirement, the employee can also claim compensation for this breach. The employer will be ordered to pay the employee two weeks' pay (subject to the statutory cap on a week's pay) or, if it is just and equitable in the circumstances, a higher amount of four weeks' pay (subject to the statutory cap). If there are exceptional circumstances where it would be unjust and inequitable to make an award against the employer, none will be made.
The separate claim must be one specified in sch. 5 to the Employment Act 2002. The list includes unfair dismissal, equal pay and discrimination claims.