EDITORIAL - A wishful interpretation

According to section 13 (1) of the Employment Rights Act 2012, “Where a contract of employment IS CONTEMPLATED, the employer shall, prior to or forthwith upon the commencement of the contract, give the employee a written statement of the particulars of the employment.” [emphasis added]

Despite the rather clear words of this provision that appear to require the giving of the statement to those employees who are hired after the Act only, since the contracts of employment of existing employees could scarcely be described as “contemplated”, it is clear from certain sentiments expressed on more than a few occasions by the Honourable Minister of Labour and Social Security, and Human Resource Development, Senator Dr Esther Byer, that they do not accurately reflect the intended policy of the Ministry. This seems to contemplate that all employees, existing or otherwise, should be supplied with the statement. The Minister was at it again recently in her address to the National Insurance Scheme’s 50th Anniversary Gala and GEM Awards Ceremony.

According to one report of her speech, she stated then, “Suffice it to say that the employers’ fears would be allayed if they provided the obligatory statements of particulars…there has been some delinquency in providing these documents…”

Unless there has been a massive increase in recent hirings of new employees, it would be difficult, on our interpretation, for employers to be termed delinquent in this regard. Of course, we were not privy to the instructions given to the draftsperson(s) of the Act, but it seems that he, she or they chose rather to adopt the provision found in section 1(1) of the United Kingdom Employment Rights Act 2008 that states even more clearly: “Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.”

Much of the current confusion could have been avoided had what is entailed by providing the written statement of particulars to the employee been clearly understood, and by resort to the similar legislation of some of our neighbouring jurisdictions whose legislation accommodates the Minister’s apparent desire.

In the first place, the Employment Appeal Tribunal in the United Kingdom has adjudged the written statement of particulars to be a document that merely provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most they place a heavy burden on the employer to show that the actual terms of contract are different from those he has set out in the statutory statement.”

Second, section 8 of Protection of Employment Act 2003 of St Vincent & the Grenadines appears to capture neatly the Minister’s current understanding. This reads –
“Save in the case of daily paid and weekly paid workers, an employer shall inform an employee in writing of the terms and conditions in writing of employment and such terms and conditions shall include…

And in subsection (2) –
An employer shall provide to the employee the conditions of service referred to in subsection (1) within seven working days from the date of employment or four calendar weeks where the employee is in employment at the commencement of this Act…

It is our view that those employers who choose to follow the clear words of section 13 the Employment Rights Act ought not to be chastened for ignoring the spirit of the law. Rather, it is up to the Ministry of Labour, out of an abundance of caution, to initiate an appropriate amendment to the Act through the legislative process.