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EAT Considered whether an Employee will have an Award Increased when an Employer provides a Written Statement of Conditions Late but before Proceedings Commenced

In Govdata Ltd v Denton UKEAT/0237/18/BA the Employment Appeal Tribunal (‘EAT’) considered whether an employee’s tribunal award should be increased by virtue of an employer providing a written statement of terms and conditions late but before a claim is brought in the employment tribunal.

Mr Denton was employed by Govdata (the ‘Company’) on 1 December 2015. He was not given a written statement of terms and conditions at the outset of his employment in accordance with section 1 of the Employment Rights Act 1996 (‘ERA’). Section 1 requires the statement to be given within two months of an employee’s employment beginning. The Company subsequently provided him with the written statement on 15 June 2016, several months after the deadline to do so.

Mr Denton’s employment was terminated on 19 August 2016 and he brought claims in the Employment Tribunal for arrears of pay, holiday pay and other payment which were successful. Mr Denton’s solicitors applied to the Tribunal for an uplift on the grounds that the Company failed to provide a statement of employment particulars in time under section 38(3).

Section 38(3) states that the Tribunal must increase the award if the Tribunal makes an award to the employee in respect of his other claims (such as arrears of pay and holiday pay in the present case), on the basis that when those claims were brought to the Tribunal the employer was in breach of his duty under section 1 of the ERA.

The Tribunal initially held that Mr Denton would be entitled to an increased award, however, on an appeal the EAT concluded that section 38(3) allowed for the Tribunal to increase the award only where the employer was in breach of the duty when the proceedings were commenced. Therefore, as Mr Denton received a written statement of particulars before he issued the claim in the Tribunal his award could not be increased.

This decision shows that an employer can remedy the breach of section 1 of the ERA, prior to proceedings commencing and if they do so the Tribunal’s power to increase an award will not be available.

Employers should also note that from 6 April 2020 the right to a section 1 statement will become a day-one right under the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378)), which were laid before Parliament on 17 December 2018. It is therefore important that employers ensure the section 1 statement is provided on day one from 6 April 2020 to avoid any future claims.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.