THE EMPLOYMENT RELATIONSHIP
EMPLOYMENT RIGHTS
ACT ERA 1996
S1 Statement of initial employment particulars.
(1)Where [a worker] begins employment with an employer, the employer shall give
to [the worker] a written statement of particulars of employment.
S2 2)Subject to sections 2(2) to (4)—
(a)the particulars required by subsections (3) and (4) must be included in a single
document; and
(b)the statement must be given not later than the beginning of the employment.]
S3 (3)The statement shall contain particulars of—
(a)the names of the employer and [worker],
(b)the date when the employment began, and
(c)[ in the case of a statement given to an employee,] the date on which the
employee’s period of continuous employment began (taking into account any
employment with a previous employer which counts towards that period).
EMPLOYMENT ACT
2002
S38 S 38Failure to give statement of employment particulars etc.
(1)This section applies to proceedings before an employment tribunal relating to a
claim by [a worker] under any of the jurisdictions listed in Schedule 5.
(2)If in the case of proceedings to which this section applies—
(a)the employment tribunal finds in favour of the [worker], but makes no award to him
in respect of the claim to which the proceedings relate, and
(b)when the proceedings were begun the employer was in breach of his duty to
the [worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18)
(duty to give a written statement of initial employment particulars or of
particulars of change [or [ (in the case of a claim by an [worker])] under section 41B
or 41C of that Act (duty to give a written statement in relation to rights not to work on
Sunday]),
the tribunal must, subject to subsection (5), make an award of the minimum amount
to be paid by the employer to the [worker] and may, if it considers it just and
equitable in all the circumstances, award the higher amount instead.
(3)If in the case of proceedings to which this section applies—
(a)the employment tribunal makes an award to the [worker] in respect of the claim to
which the proceedings relate, and
(b)when the proceedings were begun the employer was in breach of his duty to
the [worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 [or [ (in the
case of a claim by an [worker])] under section 41B or 41C of that Act],
the tribunal must, subject to subsection (5), increase the award by the minimum
amount and may, if it considers it just and equitable in all the circumstances,
increase the award by the higher amount instead.
(4)In subsections (2) and (3)—
(a)references to the minimum amount are to an amount equal to two weeks’ pay,
and
(b)references to the higher amount are to an amount equal to four weeks’ pay.
(5)The duty under subsection (2) or (3) does not apply if there are exceptional
circumstances which would make an award or increase under that subsection
unjust or inequitable.
Schedule 5 [F5Section 145A of the Trade Union and Labour Relations (Consolidation) Act 1992
(inducements relating to union membership or activities) Section 145B of that Act
(inducements relating to collective bargaining) Section 146 of that Act (detriment in
relation to union membership and activities)]
, Paragraph 156 of Schedule A1 to that Act (detriment in relation to union recognition
rights)
F6...
Section 23 of the Employment Rights Act 1996 (c. 18) (unauthorised deductions and
payments)
Section 48 of that Act (detriment in employment)
Section 111 of that Act (unfair dismissal)
Section 163 of that Act (redundancy payments)
Section 24 of the National Minimum Wage Act 1998 (c. 39) (detriment in relation to
national minimum wage)
F7...
The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994
(S.I. 1994/1623) (breach of employment contract and termination)
The Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (S.I.
1994/1624) (corresponding provision for Scotland)
Regulation 30 of the Working Time Regulations 1998 (S.I. 1998/1833) (breach of
regulations)
Regulation 32 of the Transnational Information and Consultation of Employees
Regulations 1999 (S.I. 1999/3323) (detriment relating to European Works Councils)
F8...
F9...
[F10 Regulation 45 of the European Public Limited-Liability Company Regulations
2004 ( S.I. 2004/2326 ) (detriment in employment)
Regulation 33 of the Information and Consultation of Employees Regulations 2004
( S.I. 2004/3426 ) (detriment in employment)
Paragraph 8 of the Schedule to the Occupational and Personal Pension Schemes
(Consultation by Employers and Miscellaneous Amendment) Regulations 2006 ( S.I.
2006/349 ) (detriment in employment) ]
[F11Regulation 34 of the European Cooperative Society (Involvement of Employees)
Regulations 2006 (detriment in relation to involvement in a European Cooperative
Society)]
F12...
[F13Regulation 51 of the Companies (Cross-Border Mergers) Regulations 2007
(detriment in relation to special negotiating body or employee participation)]
[F14Regulation 17 of the Cross-border Railways Services (Working Time) Regulations
2008 (breach of regulations)]
[F15“Sections 120 and 127 of the Equality Act 2010 (discrimination etc in work
cases)”.]
Definition of an Employee
Employee S230(1) ERA 1996 states that an employee is : “an individual who… works under…
a contract of employment”.
S230(2): defines that a contract of employment is:
o “A contract of service… whether express or implied and (if it is express)
whether oral or in writing”.
Identifying a Contract Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
of Service [1968] 1 All ER 433 introduced the multiple factor test:
The test identifies there are three indicators of a Contract of Service:
The employee must agree to provide work in consideration
for a wage.
Servant agrees, expressly or impliedly, that he will be sub-
ject to the master’s control in a sufficient degree.
o Does the employer have “the power of deciding the
EMPLOYMENT RIGHTS
ACT ERA 1996
S1 Statement of initial employment particulars.
(1)Where [a worker] begins employment with an employer, the employer shall give
to [the worker] a written statement of particulars of employment.
S2 2)Subject to sections 2(2) to (4)—
(a)the particulars required by subsections (3) and (4) must be included in a single
document; and
(b)the statement must be given not later than the beginning of the employment.]
S3 (3)The statement shall contain particulars of—
(a)the names of the employer and [worker],
(b)the date when the employment began, and
(c)[ in the case of a statement given to an employee,] the date on which the
employee’s period of continuous employment began (taking into account any
employment with a previous employer which counts towards that period).
EMPLOYMENT ACT
2002
S38 S 38Failure to give statement of employment particulars etc.
(1)This section applies to proceedings before an employment tribunal relating to a
claim by [a worker] under any of the jurisdictions listed in Schedule 5.
(2)If in the case of proceedings to which this section applies—
(a)the employment tribunal finds in favour of the [worker], but makes no award to him
in respect of the claim to which the proceedings relate, and
(b)when the proceedings were begun the employer was in breach of his duty to
the [worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18)
(duty to give a written statement of initial employment particulars or of
particulars of change [or [ (in the case of a claim by an [worker])] under section 41B
or 41C of that Act (duty to give a written statement in relation to rights not to work on
Sunday]),
the tribunal must, subject to subsection (5), make an award of the minimum amount
to be paid by the employer to the [worker] and may, if it considers it just and
equitable in all the circumstances, award the higher amount instead.
(3)If in the case of proceedings to which this section applies—
(a)the employment tribunal makes an award to the [worker] in respect of the claim to
which the proceedings relate, and
(b)when the proceedings were begun the employer was in breach of his duty to
the [worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 [or [ (in the
case of a claim by an [worker])] under section 41B or 41C of that Act],
the tribunal must, subject to subsection (5), increase the award by the minimum
amount and may, if it considers it just and equitable in all the circumstances,
increase the award by the higher amount instead.
(4)In subsections (2) and (3)—
(a)references to the minimum amount are to an amount equal to two weeks’ pay,
and
(b)references to the higher amount are to an amount equal to four weeks’ pay.
(5)The duty under subsection (2) or (3) does not apply if there are exceptional
circumstances which would make an award or increase under that subsection
unjust or inequitable.
Schedule 5 [F5Section 145A of the Trade Union and Labour Relations (Consolidation) Act 1992
(inducements relating to union membership or activities) Section 145B of that Act
(inducements relating to collective bargaining) Section 146 of that Act (detriment in
relation to union membership and activities)]
, Paragraph 156 of Schedule A1 to that Act (detriment in relation to union recognition
rights)
F6...
Section 23 of the Employment Rights Act 1996 (c. 18) (unauthorised deductions and
payments)
Section 48 of that Act (detriment in employment)
Section 111 of that Act (unfair dismissal)
Section 163 of that Act (redundancy payments)
Section 24 of the National Minimum Wage Act 1998 (c. 39) (detriment in relation to
national minimum wage)
F7...
The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994
(S.I. 1994/1623) (breach of employment contract and termination)
The Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (S.I.
1994/1624) (corresponding provision for Scotland)
Regulation 30 of the Working Time Regulations 1998 (S.I. 1998/1833) (breach of
regulations)
Regulation 32 of the Transnational Information and Consultation of Employees
Regulations 1999 (S.I. 1999/3323) (detriment relating to European Works Councils)
F8...
F9...
[F10 Regulation 45 of the European Public Limited-Liability Company Regulations
2004 ( S.I. 2004/2326 ) (detriment in employment)
Regulation 33 of the Information and Consultation of Employees Regulations 2004
( S.I. 2004/3426 ) (detriment in employment)
Paragraph 8 of the Schedule to the Occupational and Personal Pension Schemes
(Consultation by Employers and Miscellaneous Amendment) Regulations 2006 ( S.I.
2006/349 ) (detriment in employment) ]
[F11Regulation 34 of the European Cooperative Society (Involvement of Employees)
Regulations 2006 (detriment in relation to involvement in a European Cooperative
Society)]
F12...
[F13Regulation 51 of the Companies (Cross-Border Mergers) Regulations 2007
(detriment in relation to special negotiating body or employee participation)]
[F14Regulation 17 of the Cross-border Railways Services (Working Time) Regulations
2008 (breach of regulations)]
[F15“Sections 120 and 127 of the Equality Act 2010 (discrimination etc in work
cases)”.]
Definition of an Employee
Employee S230(1) ERA 1996 states that an employee is : “an individual who… works under…
a contract of employment”.
S230(2): defines that a contract of employment is:
o “A contract of service… whether express or implied and (if it is express)
whether oral or in writing”.
Identifying a Contract Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
of Service [1968] 1 All ER 433 introduced the multiple factor test:
The test identifies there are three indicators of a Contract of Service:
The employee must agree to provide work in consideration
for a wage.
Servant agrees, expressly or impliedly, that he will be sub-
ject to the master’s control in a sufficient degree.
o Does the employer have “the power of deciding the
