25 July 2015
Failure to provide a written statement of employment particulars
A contract of employment may be verbal but all employees, whether part-time or full-time, are entitled by law to be given a written statement setting out the main particulars of their employment, provided their employment lasts for one month or more (Section 1 of the Employment Rights Act 1996).
Under Section 38 of the Employment Act 2002, unless an employer can demonstrate that there are exceptional circumstances, employees could be entitled to an award of between two and four weeks' pay if their employer fails to provide them with a written statement of initial employment particulars or of any changes to their terms of employment. This right only applies, however, if the employee has successfully brought another substantive claim.
In Advanced Collection Systems Limited v Gultekin, the Employment Appeal Tribunal (EAT) disagreed with the approach taken by the Employment Tribunal (ET), which had ruled that the correct interpretation of Section 38 was that settlement of a claim in an employee's favour, resulting in its withdrawal, constituted a finding in favour of the claimant.
Ms Gultekin had resigned without notice and claimed that she had done so because of a repudiatory breach of her employment contract. Shortly after her resignation, her employer paid her in lieu of her notice period, even though it was not obliged to do so, and subsequently paid her additional sums she requested in respect of holiday pay. Ms Gultekin's initial claim to the ET stated that she had not been paid for her period of notice, which was refuted by her employer and she then sought to withdraw that part of her claim. Her claims of unfair and/or wrongful dismissal were rejected by the ET but, in the course of the hearing, it emerged that there had been a failure on the part of her employer to provide her with a written statement of her employment particulars.
Mistakenly believing that Ms Gultekin's complaint of a failure to pay notice pay had been issued before her employer had paid her the money, the ET awarded her the maximum of four weeks' salary, which amounted to £1,800, for the failure to provide a statement of the terms and conditions of her employment and £150 by way of fee reimbursement on the basis that the withdrawal of a justified claim by a claimant amounted to a finding of fact by the ET in her favour.
The EAT upheld the employer's appeal. The ET had erred in law in several respects. Even if it had been correct in thinking that Ms Gultekin's claim had been settled only after she issued proceedings rather than beforehand, and had been entirely resolved in her favour so far as notice pay was concerned, it would in any event have been wrong to find that Section 38 gave the ET jurisdiction to make the award. Section 38 requires a finding in favour of the claimant and this does not include withdrawal of a claim.
The EAT went on to order that the employer's EAT fees of £1,600 should be met by Ms Gultekin.