The question of timings of the provision of a written statement of employment terms and conditions for the purposes of deciding whether there has been a breach by the employer of its duty under section 1 of the Employment Rights Act 1996 has recently been considered in the case of Govdata Ltd v Denton. Here it was held that the statement being provided late, but before the case begins in the Employment Tribunal was not a breach.
Mr Denton was employed by Govdata. His employment commenced on 1st December 2015 and as required by s1 Employment Rights Act 1996, he was entitled to a statement of terms and conditions within 2 months of his commencement date. He was given a written statement, but not until 15th June 2016, long after the deadline. He was dismissed in August 2016. On 22 November 2016 he brought a claim to the Employment Tribunal for arrears of pay, holiday pay, notice pay and other payments.
Under s.1 Employment Rights Act 1996, an employer must provide an employee with a written statement of particulars of employment, which must contain certain stipulated information and must be given within not later than two months after the employment commences.
Under s.38 Employment Act 2002, an Employment Tribunal (ET) can, when finding in favour of the employee, make an increased award to the employee where the employer is in breach of their s.1 duty for failing to provide written particulars within the required period.
The ET upheld Mr Denton’s complaints and decided in favour of Mr Denton and made such an award for failure to provide written particulars. Govdata appealed this decision.
The EAT held that the ET had erred in law in increasing the award in relation to failing to provide written particulars. It concluded that Govdata, as the employer, had met the requirement to provide written particulars, regardless of the fact that’s this had been late. The EAT decided that s.38 allowed for any tribunal award to be increased, but only where the employer was in breach of their duty to provide written particulars of employment when proceedings commenced. Since they had complied, notwithstanding the fact that they were late in doing so, the employer had still complied. This meant that while Govdata had been in breach of s.1 in the delay in providing written particulars, they were not in breach of their duty at the time proceedings commenced. Section 38(3) contemplates that a breach of s.1 may be remedied, and if it is remedied before the proceedings had begun the power to order an increase in an award will not be available.
Accordingly, Mr Denton was not entitled to an award increased under s38 of the Employment Act 2002.
It appears from this decision that employers will be safe from an increased award in an Employment Tribunal for failure to give statement of employment particulars where such particulars are given late, provided the particulars were in fact given to the Claimant before the dismissal occurred or before proceedings are issued. However, employers should be mindful that there is a statutory duty to provide written statement of employment particulars within two months of an employee commencing work, and should adhere to this in all cases. This should merely act as reassurance in the minority of cases where for some reason particulars are not given, and it is certainly best practice to ensure employees are provided with written particulars of employment as soon as practicable.
Written Statement of Particulars of Employment
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