Making a Statement
New legislation arriving next year will provide better protection for workers, including zero-hours contracts and agency employees. All workers, including agency employees and those on zero-hours contracts, will be entitled to a statement of their rights from the first day in the role under measures revealed by the government last month.
Until then, under current legislation, a company needs to provide a statement to workers who are employed for a month or more, but there is no obligation to provide it until the employee reaches two months of employment. However, a recent decision at the Employment Appeals Tribunal (EAT) has highlighted the need to issue a statement of employment rights at a slightly earlier stage.
The EAT concluded that the employees, who had been employed at the Maritime Hotel in Portland, Dorset, should all have received a ‘section one’ statement of their employment terms and conditions even though one of the claimants had only been working at the hotel for six weeks.
The members of staff involved had been employed at the Maritime Hotel in Portland, Dorset and commenced their jobs at the hotel on various dates from 21 April 2016. However, they were all dismissed on 7 July 2016 after they had objected to “persistent shortfalls in their wages, late payment and a falsification of their wage slips”.
As well as losing their jobs, they were forced to leave their living quarters at the hotel, which resulted in them having to return to their home country of Poland.
Their claims were for failure to provide a statement of terms and conditions and direct race discrimination, and these claims were heard at an Employment Tribunal in August 2017.
The Tribunal decided that two of the claimants, Miss Stefanko and Mr Jonik, were entitled to an award of four weeks’ basic pay as they had not received the statement after two months in their roles, but that the third claimant, Miss Woronowicz, was not entitled to the statement given that she’d only been employed at the hotel for a total of six weeks.
In relation to the direct discrimination part of their claim, it was alleged that the hotel’s manager used offensive and “racially tainted language” when dismissing them, mimicking Mr Jonik’s accent and informing them they should return to Poland.
This aspect of the claim was dismissed by the Tribunal due to the lack of evidence to suggest that a hypothetical comparator of another nationality would have been treated more favourably if the same situation had arisen.
The three former members of staff appealed, and their case was heard by the Employment Appeals Tribunal (EAT) last September.
The EAT found the Tribunal had made a mistake in finding that Miss Woronowicz was not entitled to the terms and conditions statement. In their findings, they stated that “the obligation to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month”.
However, in relation to the direct discrimination claim, the EAT stated that the original Tribunal had “misapplied the burden of proof” and had not properly explained why it reached the conclusion that it did.
The EAT has referred the case back to a further tribunal to consider the race discrimination claim but also to make a decision as to whether Miss Woronowicz should receive two or four weeks’ pay for not receiving a statement of employment rights.
This case then highlights the need to provide workers with a statement of employment earlier in the working relationship than was previously necessary.
With that in mind, and with a forthcoming change to the law, it would be appropriate for companies to review their processes now so that such statements are issued from day one of employment.
It will certainly help to prepare for the future and also to avoid any such similar claims from their own employees.
- by: Terry Hayward
- 17 Jan, 2019