Iqbal (t/a Smokin' Rooster) v Singh

An Employment Tribunal may refuse an adjournment where it has considered the relevant circumstances, applied the overriding objective, and given clear reasons. An appellate tribunal will not interfere merely because another judge might have exercised the discretion differently.

Under Employment Act 2002 section 38, an additional award may be made where, when proceedings began, the employer remained in breach of the duty to provide written employment particulars and the tribunal found for the employee on a relevant claim. The successful claim need not relate to the employment period in which the written-statement duty was breached. By Employment Rights Act 1996 section 2(6), the duty can continue after employment has ended.

The claimant brought claims for unlawful deductions from wages arising from two periods of work in a takeaway restaurant. The Employment Tribunal held that Mr Iqbal personally employed him. It upheld the deductions claim for the later period, but dismissed the earlier claim as out of time.

The Tribunal also found a failure to provide employment particulars and awarded four weeks’ pay under Employment Act 2002 section 38. It refused the employer’s application, made during the hearing, to adjourn so that he could produce documents and call witnesses. On reconsideration it declined to admit documents which could and should have been produced at the hearing.

The employer appealed, challenging the refusal of an adjournment and the section 38 award.

1. Appeal dismissed. The Employment Judge was entitled to refuse the adjournment. The decision was discretionary and had to be made judicially, fairly and consistently with the overriding objective. The employer had clear written notice that the hearing would determine the claim and that he was responsible for bringing documents and witnesses. The application was made only after he was challenged about the absence of supporting material. The Judge gave clear reasons, including the employer’s lack of reliability and the need to deal with the case fairly and proportionately. The decision was not plainly wrong and disclosed no error of law.

2. The Tribunal was entitled to make the additional award under section 38 of the Employment Act 2002. The relevant question was whether, when proceedings began, the employer was in breach of the duty under section 1 of the Employment Rights Act 1996, and whether the Tribunal found for the employee or made an award on a claim within the section.

3. Applying Stefanko and Others v Maritime Hotel Limited and Another, UKEAT/0024/18, section 2(6) of the Employment Rights Act 1996 meant that the duty to provide a written statement continued after employment ended. The Tribunal therefore could make a section 38 award in connection with the later, shorter period of employment, because the breach remained outstanding when the proceedings were issued and the claimant succeeded on that claim.

4. There was no requirement in section 38 that the successful claim be linked to the particular employment period in which the written-statement duty had been breached. The Employment Judge’s reasoning was erroneous insofar as it suggested that an award required employment lasting two months, but the award was nevertheless correct on the proper statutory basis. The employer was not permitted to advance for the first time on appeal an unsupported contention that the earlier employment was with a different company.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s refusal of an adjournment and its four-week award under section 38 of the Employment Act 2002, although on a different legal basis.
• Employment Tribunal: Reserved judgment sent to the parties on 16 April 2018. It found unlawful deductions of £451.20 for the later employment period, dismissed the earlier deductions claim as out of time, and awarded four weeks’ pay for failure to provide compliant written employment particulars. A reconsideration application was determined on the papers on 8 June 2018.