Govdata Ltd v Denton

It is not enough that an employer was at one time in breach of the duty to provide written particulars. Instead, section 38(3) of the Employment Act 2002 permits an uplift only where the employer was in breach of section 1 of the Employment Rights Act 1996 when the proceedings were begun. If the employer remedies the breach before proceedings begin, the tribunal’s power to increase the award under section 38(3) is not available.

The claimant was given written particulars late but received them before bringing Employment Tribunal proceedings. The Employment Tribunal awarded a small uplift under section 38 of the Employment Act 2002. The employer appealed to the Employment Appeal Tribunal. The central issue was whether section 38(3)(b) requires that the employer be in breach at the moment proceedings are begun, or whether a prior, remedied breach still permits an uplift.

(1) Appeal allowed. The Employment Tribunal’s increase under section 38(3) of the Employment Act 2002 was set aside.

(2) Section 38(3) must be read according to its plain words. The subsection conditions the availability of the mandatory uplift on the employer being in breach of section 1(1) or 4(1) of the Employment Rights Act 1996 when the proceedings were begun. If the employer has remedied the breach before proceedings begin the condition in section 38(3)(b) is not satisfied and the tribunal lacks the statutory power to increase the award under that subsection.

(3) The statute contemplates that a breach of the section 1 duty may be remedied and that remedy removes the basis for the uplift. The wording "when the proceedings were begun" is significant and must be given effect.

(4) The Employment Tribunal’s decision did not explain how the condition in section 38(3)(b) was met where compliance had occurred prior to the commencement of proceedings. No alternative legal analysis was advanced that could justify the uplift. The respondent had complied before proceedings were begun and therefore the uplift was not available.

(5) Result: the Employment Tribunal judgment dated 15 June 2018 is set aside.

• Employment Appeal Tribunal: Appeal allowed; Employment Tribunal award increased under section 38(3) set aside. [2019] UKEAT 0237_18_2801
• Employment Tribunal (Liverpool): Reserved Judgment dated 15 June 2018 awarding uplift under Employment Act 2002 s.38 (original decision set aside).