Is an employee entitled to compensation for a claim not properly made out?
The recent case of Levy v 34 & Co Ltd considered whether an Employment Tribunal (ET) needs to consider making a compensation uplift order where the Respondent is not on notice of such a claim.
Facts of the Levy case
Mr Levy (the Claimant) was employed by the Respondent from 29 October 2018, for just under a month. The Claimant resigned with immediate effect on 28 November 2018 and brought a claim for unlawful deductions in the sum of £148.62. On the claim form submitted, this was the only type of claim declared. The Respondent submitted its response (known as an ET3) disputing the claim, stating that they had made correct deductions for taxes and that these were shown on the form P45. The Claimant was represented by the 'Free Representation Unit' (FRU). The Respondent, on the other hand, did not seek legal advice and did not engage in the proceedings after submitting its response, asserting it would not have made economic sense to do so given the low value of the Claimant's claim.
The schedule of loss submitted by the Claimant's representative set out the calculation of the alleged unlawful deduction, and under the heading 'Written particulars of employment' stated:
"The Respondent has failed to provide written particulars of employment in breach of the Claimant's right pursuant to s.1 ERA 1996, Part II.
The Tribunal should make an award to the Claimant of the higher amount of four weeks' pay, pursuant to s.38(3) and s.38(4)(b) Employment Act 2002 . This amounts to £1,150 approx., based on the Claimant's worked hours of a four-week period.
Total loss 1,150."
The above was the first and last mention of a claim to the ET for compensation arising from a failure to provide written particulars of employment, it not having been pleaded in the particulars of claim. Further, it is noteworthy that the schedule of loss was not provided to the Respondent upon its submission to the ET during trial preparations, and the Respondent was not present at the ET hearing itself.
Where a worker has not been given a proper written statement of employment particulars, the ET can make a monetary award under section 38 of the Employment Act 2002 (EA). A written statement must contain information such as the date the employment began, the employee's job title and place of work, and also details in relation to pay and notice periods. A Claimant cannot bring a section 38 claim in isolation, and it is therefore always 'attached' another claim. Where it is found that a worker has not been given a proper written statement of employment particulars, the ET:
- must, in normal circumstances, make an award of two weeks’ capped pay, or increase the existing award by this amount; and
- may make an award of four weeks’ capped pay instead if it considers it just and equitable in all the circumstances to make the higher award.
It is important to note that, since 2018, when the facts of the Levy case occurred, the law has changed. These reforms, which have a wider reach, were set out in the 'Good Work Plan' following the recommendations of the Taylor Review.
The law as it stood when the events in the Levy case took place was as follows:
- only employees had a right to be given a written statement of employment particulars;
- employees with less than one month’s service in the relevant employment were excluded from that right; and
- the written statement of employment particulars had to be provided within two months of the start date of the employment.
However, from 6 April 2020:
- anyone with worker or employee status has a right to be given a written statement of employment particulars on the first day of employment;
- the exclusion for those with less than one month’s service has been repealed. Now all workers have the right to receive written particulars of employment; it is now irrelevant how long their employment lasts; and
- the written statement of employment particulars must now ‘be given not later than the beginning of the employment’.
The Employment Judge (EJ) declared that the Respondent had made an unlawful deduction from the Claimant's wages and ordered that the Respondent pay him the sum of £148.62. The EJ also held that, contrary to the Employment Rights Act 1996 (ERA), the Respondent has failed to provide the Claimant with a written itemised pay statement. However, the ET did not increase this award under section 38 EA in the oral judgment or written reasons later circulated. The Claimant’s FRU representative did not raise the omission of an award under section 38 EA at the time. However, the Claimant later appealed and contended that the EJ should have done so, given the mandatory language of section 38(3) EA which provides that, in applicable cases, the ET must increase the award and make an uplift.
The EAT dismissed the appeal.
It held that there had been a failure to provide employment particulars, and the Respondent remained in breach of section 1 ERA on the date on which the ET claim was commenced. However, the EAT Judge did not accept that the ET is bound to order a section 38 EA uplift whether or not it is asked to do so, noting it is primarily for a Claimant to make known to the ET what he/she is claiming. The EAT judge commented that this ensures that the nature of the claim will be made known to the Respondent, and only then can there be a fair hearing. Consequently, it was held the Claimant's representative was wrong to contend that the EJ erred in law by not making a section 38 award. On the contrary, if she had made the award, she would have erred in law.
Take away points for employers
As mentioned above, from 6 April 2020, the exclusion for employees in short-term employment for a period of less than one month no longer applies. All workers now have the right to receive written particulars of employment, no later than the time their employment starts (i.e. their first day), irrespective of how long their employment ultimately lasts.
However, this is the first case which provides an express and clear answer as to whether there is an obligation on ETs to consider whether to make any award under section 38 EA regardless of whether the claimant has expressly advanced such a claim before the court, most commonly by expressly including it in the claim form.
As an aside, in relation to the Respondent's engagement in proceedings the EAT Judge commented, "Although taking a passive attitude to legal proceedings may be unwise and unhelpful, the economic point made is an understandable one."
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.