Advanced Collection Systems Ltd v Gultekin (Jurisdictional Points)

An employment tribunal may award or increase compensation for failure to provide written employment particulars under section 38 only where proceedings fall within Schedule 5 and the tribunal either makes an award on the substantive claim or makes an actual finding in the employee’s favour without making such an award. A dismissal following withdrawal of a claim is not a finding in the employee’s favour. A purposive construction cannot displace those specific words where the statutory purpose is unclear.

The claimant resigned with immediate effect and alleged constructive unfair dismissal and wrongful dismissal. The Employment Tribunal rejected the alleged repudiatory conduct but found that the employer had failed to provide written employment particulars. It awarded four weeks’ pay under section 38 of the Employment Act 2002 and a partial reimbursement of tribunal fees.

On reconsideration, the Employment Judge treated the claimant’s withdrawal of a notice-pay complaint as a favourable finding because the employer had paid notice monies. The employer appealed. The central issue was whether there had been a finding in the employee’s favour within section 38(2)(a).

1. Appeal allowed. The Employment Tribunal had no jurisdiction to make the section 38 award. The claimant’s unfair-dismissal claim failed and there was no finding in her favour on a claim within Schedule 5.

2. Section 38 of the Employment Act 2002 creates two relevant routes to an award for breach of the duty to provide particulars: the tribunal must either find in favour of the employee while making no substantive award, or make an award on the substantive claim. The latter necessarily entails a finding in the employee’s favour.

3. The claimant had no justified notice-pay claim. She resigned immediately, without a repudiatory breach by the employer, and was herself in breach of contract. The employer’s earlier payment in lieu of notice was voluntary and pre-dated the proceedings. There was therefore no proper outstanding monetary claim when the claim form was issued.

4. In any event, a withdrawal of a complaint, or its dismissal on withdrawal, is not an actual tribunal finding in the employee’s favour. The statutory language requires a decision by the tribunal in the employee’s favour. It does not extend to proceedings said to have been resolved favourably after payment.

5. The Employment Judge could not adopt a purposive construction without a clear understanding of the statutory purpose. The suggested policy, if correct, supported the requirement for an actual finding rather than its removal.

6. The section 38 award and the consequential fee-reimbursement award were set aside. The claim was dismissed. The claimant was ordered to reimburse the employer’s appeal fees of £1,600.

• Employment Appeal Tribunal: allowed the employer’s appeal, set aside the section 38 award and dismissed the claim.
• Employment Tribunal, Watford: rejected the substantive dismissal claims but awarded £1,800 for failure to provide particulars and £150 fee reimbursement; it later refused reconsideration.