Tribunals have the power to increase an award if the employer fails to provide the claimant with a statement of written particulars of employment. However, the Employment Appeal Tribunal (EAT) has held in Levy v 34 & Co Ltd that tribunals are not required to automatically make the uplift if the claimant did not lodge a specific claim to that effect.
Mr Levy was employed from 29 October 2018 until 28 November 2018 when he resigned with immediate effect. He brought a tribunal claim for unlawful deductions from wages and also alleged that he had not been given proper payslips.
A few days before the hearing, he sought to add a further cause of action to his claim “for failure to provide payslips”. Although this was mentioned in his original application, he asked for the amendment in case the initial reference was not sufficient to launch the claim.
The day before the hearing, his representative drew up a schedule of loss totalling £148.62. Then, under the heading “Written particulars of employment”, he wrote: “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”. He sent this to the tribunal but not to his former employer who did not take part in the proceedings.
This was the first and last mention by Mr Levy of a claim for an uplift under section 38 of the Employment Act 2002.
Section 1 of the Employment Rights Act (ERA) 1996 states that employers must provide their workers with a written statement of particulars of employment. Although this right is now applicable from day one, employees had to have worked for at least a month when Mr Levy’s case was heard.
Sections 38(3) and 38(4)(b) of the Employment Act 2002 state that if the employer fails to provide their worker with a written statement, then the tribunal “must” make an award of two weeks’ pay or, if it is just and equitable in the circumstances, it may increase the award to four weeks’ pay.
Although the employment judge made an award to Mr Levy for an unlawful deduction of £148.62 and a declaration that there had been a failure to provide payslips, she did not refer either to the section 38 uplift or the application to amend the initial application. However, it was obvious from the fact that she made the declaration with regard to payslips, that she had found that claim to be valid.
Mr Levy appealed arguing that the tribunal was bound by law to apply an uplift once the tribunal had found in his favour.
Noting the failure to provide employment particulars, the EAT agreed with the tribunal that the employer was in breach of section 1 of the ERA on the date on which Mr Levy lodged his claim. As he had made a valid claim for unlawful deductions, it followed that the requirements for a section 38 uplift were satisfied as long as he could show that he had been employed for at least one month.
Although in some circumstances, a calendar month runs from a numbered date until the correspondingly numbered date in the following month, the EAT noted that in the employment context one year’s employment begins on the first day and ends on the 365th day. So, if it began on, say, 29 October 2018, it would end on 28 October 2019. As the tribunal found that he was employed from 29 October 2018 to 28 November 2018, then the EAT agreed that he had indeed been employed for one month.
That left one question – whether the tribunal was automatically required to order a section 38 uplift if it had not been specifically asked to do so. Finding against Mr Levy, the EAT held that the onus was on him to make clear to the tribunal what he was claiming. That was the only way to ensure that the employer was aware of the nature of the claim, thus allowing a fair hearing. Therefore, it dismissed the appeal.