The law says that employers must provide a statement of terms and conditions to their employees within two months of starting work. In Govdata Ltd v Denton, the Employment Appeal Tribunal (EAT) held that even if the employer is late in complying with section 1, employees cannot claim an increase in compensation under section 38 of the Employment Act 2002.

Basic facts

Mr Denton started working for Govdata on 1 December 2015. He was not given a written statement of his terms and conditions until 15 June 2016, contrary to section 1 of the Employment Rights Act (ERA) 1996 which requires employers to provide their employees with a statement within two months of the employee starting work.

After his employment was terminated in August 2016, Mr Denton brought a tribunal claim for arrears of pay, holiday pay and notice pay, among other things. These were upheld by the tribunal and he was awarded compensation.

His representatives then applied to the tribunal for an increase to the award under section 38 (3) of the Employment Act 2002.  The company argued that this section did not apply as Mr Denton had received the statement some months prior to bringing his tribunal claim. The tribunal judge, however, increased the award and the company appealed.

Relevant law

Section 1(1) ERA states that “Where an employee begins employment with an employer, the employer shall give to the employee a written … statement of particulars of employment”.

Section 1(2) ERA states that “The statement … shall be given not later than two months after the beginning of the employment.

Section 38(3) Employment Act 2002 states that “if in the case of proceedings to which this section applies:

 (a)the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and

(b)when the proceedings were begun the employer was in breach of his [sic] duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996, the tribunal must … increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead”.

EAT decision

Allowing the appeal, the EAT held that, although the employer was late in complying with the duty to provide a written statement of terms and conditions under section 1 ERA, they had complied with it before Mr Denton started employment tribunal proceedings.

As section 38(3) makes clear that a breach of section 1 may be remedied and if it is remedied before proceedings start, then the power to order an increase is no longer available to a tribunal.

The judge could not see “any other sensible reason why Parliament would otherwise have put the phrase, “when the proceedings were begun” at the start of section 38(3)(b)”.

The appeal was therefore allowed and the tribunal judgement was set aside.