Philip Rush v Wilts & Dorset Bus Company Ltd

The Employment Appeal Tribunal dismissed the appellant's challenge to the Employment Tribunal's award of £202.52 for unlawful deductions from wages. The EAT held that the ET had considered whether an uplift under section 207A of the Trade Union and Labour Relations Consolidation Act 1992 (the ACAS Code uplift) was appropriate and had reasonably concluded there was no non-compliance with the ACAS Code of Practice on grievance procedures. The EAT also held that the employer had provided the claimant with a section 1 statement of particulars in 2014, so no section 38(3) Employment Act 2002 award (two to four weeks' pay) was payable when the claim was begun. The ET's factual findings on unpaid sick pay, holiday pay and a small amount of unpaid overtime were upheld as supported by evidence and not vitiated by errors of law.

Background and parties: The claimant appealed against a Southampton Employment Tribunal decision (hearing 2–4 August 2023; decision dated 26 September 2023) which dismissed his discrimination and harassment claims but upheld limited unlawful deduction from wages claims, awarding a total of £202.52 made up of sick pay (£97.50), unpaid holiday pay (£104.00) and unpaid overtime (£4.02). The appellant appeared in person; the respondent was represented.

Nature of the claim and relief sought: The claimant sought a wider award for multiple alleged unlawful deductions, an uplift under section 207A TULRCA for alleged non-compliance with the ACAS Code of Practice on grievance procedures, and an additional award under section 38(3) of the Employment Act 2002 for failure to provide a written statement of particulars (two to four weeks' pay). He also challenged the ET's reasoning and calculations (overtime, holiday pay and enhanced pay for Saturdays).

Procedural posture: The appeal was sifted; one ground was initially found arguable by Deputy High Court Judge John Bowers KC. On application, five grounds were allowed to proceed by Sarah Crowther KC (DHCJ) and the ET was asked to clarify a related potential sixth ground which the ET denied. This appeal addressed Grounds 1–5 as particularised.

Issues framed:

• Ground 1: whether the ET erred in failing to apply section 207A TULRCA to uplift awards for alleged non-compliance with the ACAS grievance Code;
• Ground 2: whether the ET ought to have made an award under section 38(3) Employment Act 2002 where a section 1 statement had not been given;
• Ground 3: whether the ET failed to consider overtime claims for hours worked beyond contracted hours;
• Ground 4: whether the ET overlooked claims for enhanced pay for Saturdays;
• Ground 5: whether the ET miscalculated holiday pay.

Reasoning and outcome: The EAT examined the ET's written reasons and the evidence. On Ground 1 the ET had explicitly considered the ACAS Code uplift and stated it found no non-compliance; the claimant had not identified any specific breach and the ET's brief reasons were sufficient. On Ground 2 the EAT accepted the factual finding that the claimant had been provided with a statement of particulars in 2014 on transfer to the respondent and thus the employer was not in breach when the claim began. On Grounds 3 and 4 the ET accepted and relied on the respondent's witness (Mr Wade) and the claimant's schedule of loss; the EAT found no legal error in accepting that analysis. On Ground 5 the ET used the hours figure put forward by the claimant (9.54 hours) in calculating holiday pay and its arithmetic led to the underpayment figure; no legal error was identified. The appeal was dismissed for lack of error of law.

Appeal dismissed. The Employment Appeal Tribunal found that the Employment Tribunal had considered whether an uplift under section 207A TULRCA was appropriate and had reasonably concluded there was no non-compliance with the ACAS Code; that a section 1 statement of particulars had been given to the claimant on transfer in 2014 so section 38(3) Employment Act 2002 did not apply at the date the claim began; and that the ET's factual findings on sick pay, holiday pay and overtime were supported by evidence and not vitiated by error of law. The ET's concise reasons were sufficient.

Appeal from Southampton Employment Tribunal (hearing 2–4 August 2023; decision dated 26 September 2023). Notice of appeal filed 10 November 2023; Deputy High Court Judge John Bowers KC allowed one ground as reasonably arguable at sift. The claimant applied to proceed under rule 3(10); Sarah Crowther KC (DHCJ) allowed five grounds to proceed by order dated 6 March 2025 and directed the ET to clarify a potential sixth ground. The appeal was heard in the EAT and dismissed on 1 July 2025.