Govdata Ltd v Denton

An uplift under section 38(3) of the Employment Act 2002 is unavailable unless, when the Employment Tribunal proceedings began, the employer remained in breach of its duty to provide written employment particulars under section 1 of the Employment Rights Act 1996.

A late statement may remedy the breach. Where it was supplied before proceedings commenced, the statutory condition in section 38(3)(b) is not met, even though the employer previously failed to comply within the required time.

The employee commenced Employment Tribunal proceedings for arrears of pay, holiday pay, notice pay and other payments after his employment ended. His employer had provided a written statement of employment particulars late, but before those proceedings began.

The Employment Judge upheld the substantive complaints and increased the award by £958 under section 38 of the Employment Act 2002. The employer appealed, contending that section 38(3)(b) was not satisfied because the section 1 duty had been complied with before proceedings commenced.

1. Appeal allowed. The Employment Judge’s award of £958 under section 38 was set aside.

2. Section 38(3) of the Employment Act 2002 requires the tribunal to ask whether, when proceedings were begun, the employer was in breach of its duty under section 1 of the Employment Rights Act 1996.

3. The employer had provided the required written statement late. That was initially a breach of section 1, but it had been remedied before the employee began Employment Tribunal proceedings.

4. Section 38(3) contemplates that a breach of section 1 may be remedied. The temporal wording in section 38(3)(b) means that, where remediation occurred before proceedings began, the tribunal has no power to increase the substantive award. The statutory precondition was therefore absent.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the £958 uplift awarded under section 38 of the Employment Act 2002.

• Employment Tribunal, Liverpool: By judgments dated 22 March 2018 and 15 June 2018, upheld the employee’s substantive complaints and awarded a section 38 uplift.