When failure to provide statement of particulars claimable

Govdata Ltd failed to give David Denton a written statement of the main terms and conditions of his employment until six months after he had started work. This was in breach of ss 1 to 4 of the Employment Rights Act 1996, which requires the information to be supplied in written form within two months of commencing employment.

Where an employer fails to provide this information in writing, an employee can make a tribunal claim for between two and four weeks' pay. But such a claim can only be made when it is supplementary to other claims also being made, and there is little guidance on how a tribunal should decide whether to award two or four weeks' pay. Section 38 of the Employment Act 2002 (EA 2002) refers to the four-week award as being the “higher award”. By implication the tribunal has discretion to decide whether the breach was inadvertent or flagrant. A week's pay for this purpose is subject to the statutory cap set out in s 227 of the Employment Rights Act 1996 and is currently capped at £525.

In Govdata the issue considered by the Employment Appeal Tribunal (EAT) was whether the employer had cured the breach by providing the claimant with a compliant written statement after six months' employment. Denton was dismissed after eight months' employment and made claims for arrears of pay, notice pay, holiday pay and compensation for failure to receive a written statement of particulars of employment within two months of starting work.

The EAT considered s 38(3) of EA 2002, which makes clear that a tribunal can only make an award if the employer was in breach of its statutory duty at the time the proceedings were begun, and no award was made to Denton in respect of this head of claim.

It is worth noting that Denton and three former Govdata colleagues were awarded nearly everything else they had claimed, including in Denton’s case nearly £20,000 in legal expenses. Earlier tribunal hearings had held that much of the evidence given by the Govdata directors was unreliable.

The EAT ruling can be found at this link, and the collected ET judgments at this link.