Failure to provide a written statement of particulars of employment

Section 1 of the Employment Rights Act 1996 (ERA) obliges an employer to give an employee a written statement of their initial particulars of employment within 2 months of the start of the employment.   A failure to do so can result in an award of compensation by an Employment Tribunal (ET) of between 2 and 4 weeks wages.  However, a claim for a failure to provide a written statement of particulars cannot be brought as a ‘free standing’ claim, that is it can only be brought in conjunction with another type of claim and an award of compensation can only be made where an ET makes a ‘finding in favour’ of the employee with regard to one or more of the other claims.

In the recent case of Gultekin v Advanced Collection Systems Limited, the Employment Appeal Tribunal had to consider whether an award for an admitted breach of the requirements of Section 1 should be made when parts of the claim had settled before the hearing and the remaining aspects of the claim had been unsuccessful.

The Claimant had alleged unfair and wrongful dismissal following her resignation without notice.  She had claimed that her resignation was caused by a repudiatory breach of conduct on the part of her employer arising from bullying and intimidation.  She also claimed for unpaid notice and holiday pay.

The ET rejected the claims of bullying and intimidation and the employer had somewhat generously perhaps, paid the Claimant a sum in lieu of notice and all of her outstanding holiday entitlement prior to the hearing.  The Claimant therefore withdrew this aspect of her claim at the hearing.  The ET held that the withdrawal and subsequent dismissal of part of the claim, where the reason for the withdrawal and dismissal was the payment of notice and holiday pay by the employer, was sufficient to amount to a ‘finding in favour’ of the Claimant.  The ET consequently made an award of £1,800 for a failure to provide a Section 1 statement and a partial costs award of £150.

The EAT emphatically rejected the approach of the ET and made clear that a ‘finding in favour’ of an employee by an ET is to be given its clear and literal meaning.  If a claim, in full or in part, is withdrawn or otherwise settled prior to or at a hearing and the rest of the claim is unsuccessful, there cannot be any ‘finding in favour’ of a Claimant by an ET.  The law therefore, does not allow for an ET to make an award for a breach of Section 1 in such circumstances, no matter how clear or serious such a breach may be.

The EAT also made a costs order of £1,600 against the Claimant for the full amount of the employer’s EAT fees.