Some employers may provide a prospective employee with the proposed contract of employment as part of the offer of employment, so that the terms are known from the outset. Other employers may provide the contract on a piecemeal basis over the course of the first 2 months of employment (for instance, providing the employee with a job description, followed by the contract itself).
Some employers, however, may never provide their employees with a contract of employment or, alternatively, they may provide it after the first 2 months of employment have passed. This latter scenario is clearly not the ideal in encouraging a fruitful employment relationship.
However, one reason why some employers may be justified in not providing their employees with a contract of employment is that, where an employee’s employment is “short-term” and due to last for less than a month, there is no need to provide that employee with a contract of employment whatsoever.
So what is the position where an employee is working for an employer for more than a month?
This was considered by the Employment Appeal Tribunal in the case of Stefanko and others v Maritime Hotel Ltd (in voluntary liquidation) and another in a decision published just before Christmas.
The answer provided by Her Honour Judge Stacey was nice and clear, both for employers and employees:
“...the obligation to provide the [contract of employment]* continues for employees with one month or more service, whether or not the employment relationship is ended in its second month”.
The Judge also kindly went on to recommend that:
“...it is best practice for the [contract of employment]* to be provided as soon as possible to protect both parties and in order to minimise the risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship”.
In short, therefore, where an employee is likely to be working for more than 1 month, they are entitled to receive their contract within the first 2 months of their employment. Alternatively, if they will be working for less than 1 month, they may qualify as being a short-term employee and may not need to be provided with a contract of employment.
However, if an employer is in doubt, then it may be worthwhile providing a contract of employment in any event.
A key consideration that employers should bear in mind is that, if an employee attempts to assert his or her rights in asking for their contract of employment and is then dismissed for making that request, a claim of automatic unfair dismissal may follow (i.e. a claim of unfair dismissal where the employee does not have to have 2 years of continuous service first in order to bring that claim).
Of more general importance to both employers and employees is the fact that, whilst an employee can bring a claim to seek clarification from the Employment Tribunal on what contractual terms he or she may be entitled to if the employer has not provided a contract of employment, there is no individual right to claim compensation for an employer’s failure to provide a contract of employment. However, if the employee brings another successful tribunal claim, then the Employment Tribunal may award the employee between 2 and 4 weeks’ pay if the employer has not provided the employee with a contract of employment.
*Our emphasis added
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