Three hotel employees were entitled to a statement of their employment conditions within their first month of work, the Employment Appeals Tribunal (EAT) has ruled, in a finding legal experts said was “revolutionary” for sectors with a high turnover of staff.
The ruling, if upheld, could alter the existing understanding of how soon employees should receive formal notification of their rights, which stands at two months.
The three claimants were all employed as waiting staff by the Maritime Hotel in Portland, Dorset, part of Maritime Hotels Ltd. All had relatively short periods of employment commencing on various dates from 21 April 2016.
The tribunal heard all three were dismissed on 7 July 2016 when they objected to “persistent shortfalls in their wages, late payment and a falsification of their wage slips”.
They brought the hotel before an employment tribunal (ET) in August 2017, claiming they were not given a Section One statement of their terms and conditions at any time during the course of their employment or thereafter.
The tribunal ruled Maritime Hotels failed to provide this statement for two claimants but not a third, Miss J Woronowicz, who was only employed for six weeks. The tribunal found the first two employees were automatically unfairly dismissed and ordered they be awarded an amount representing four weeks’ pay.
Woronowicz succeeded in a claim for automatic unfair dismissal, and the tribunal decided to increase her award under section 38 of the Employment Act 2002 as she did not have two months’ continuous employment with the hotel.
Two months is the amount of time given by section 1(2) of the Employment Rights Act 1996 for an employer to provide a statement on the terms and conditions of an employee’s work.
However, the EAT decided the tribunal erred in concluding an employee who has more than one but less than two months’ service is not entitled to such a statement.
Judge Stacey pointed out that section 2(6) of the Employment Rights Act says the right to a statement of employment particulars exists even if a person’s employment ends before the two-month period is up.
She ruled Woronowicz was therefore entitled to a statement and an increased award. But she remitted the case to a different employment tribunal to calculate the new award.
The EAT also found the original tribunal erred in its approach to the claimants’ additional complaints of direct race discrimination because it did not consider “whether the manner, as well as the fact of dismissal, constituted direct race discrimination”.
The three claimants are of Polish origin, and the tribunal heard they were “not well-treated by their employers” and were “frequently sworn at” by Mr N Doherty, the sole director and one of two shareholders of Maritime Hotels.
The claimants told the tribunal their dismissal was undertaken in a “particularly brutal manner” and “accompanied with racially tainted language”.
But the ET dismissed their complaint of direct race discrimination, stating “there was no evidence of less favourable treatment”.
Judge Stacey found the tribunal erred “in its conclusion that the fact of dismissal did not constitute direct race discrimination” and also remitted this to be reheard at a new tribunal.
Melanie Stancliffe, employment partner at Irwin Mitchell, told People Management the judgment relating to the statement of employment rights was “revolutionary” as it had “reinterpreted what the law on this [area] is”.
“What this judge has essentially said is employees are entitled to have a statement of their employment particulars after one month, and the further one is a grace period for the employers to provide this,” Stancliffe said.
She added it would have an impact on employers in industries such as hospitality or retail with relatively high staff turnover. Stancliffe said HR departments would have to be “on the ball” and “adept in getting statements to people” as soon as possible, if they were not already doing so.
Stancliffe said the judgment aligned practice relating to employees with the recommendations for gig economy workers in the Taylor Review. The government issued legislation in December which means workers must be informed of their rights from their first day of work, including eligibility for paid and sick leave.
Nikita Sonecha, employment and data protection solicitor at SA Law, said employers should be careful about dismissing an employee for "exercising or trying to exercise their statutory right to a written statement of employment particulars" as it is automatically unfair dismissal, with no minimum service requirement.
Sonecha said that in some cases bringing a complaint about a missing statement of rights could become a “tactic” used against employers by individuals who had not accrued two months’ service.
Maritime Hotels has been in creditors’ voluntary liquidation since 19 February 2018, and the liquidator indicated to the EAT he would not be taking part in the tribunal process.
Doherty could not be reached for comment, but in his written answer to the appeal, he told the EAT that he sought to uphold the original tribunal’s decision and would resist the appeal. None of the claimants in this case could be reached for comment.