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There have been a number of employment tribunal cases in the last few months on the failure to provide a written statement of employment particulars as required by section 1 of the Employment Rights Act 1996. This article provides the cases and decisions from the Employment Tribunal to highlight the importance of having a written statement of employment particulars or a contract of employment.
Mr O Colton v Kane Funeral Services Ltd 2408960/3032
The respondent is ordered to pay to the claimant additional compensation of £1400 for failure to provide the claimant with written statement of employment particulars as required by section 1 of the Employment Rights Act 1996.
Mrs J Hayward v Diversified Ltd and Mrs S Field: 3303605/2019
The unanimous judgement of the tribunal is that the first respondent failed to provide the claimant with a statement of principal terms of employment and is directed to pay the claimant £962.
Miss J Tozer v The Hair Venue: 1402880/2021
The dispute in this case was whether the respondent was entitled not to pay the claimant for the hours she did not work, primarily because the salon was not legally able to open during periods of lockdown. The claimants salary was below the limit for her to pay any tax or national insurance and she was not paid via PAYE and as such would not have been possible to place her on the furlough scheme. The respondent contends they were contractually only obliged to pay for the hours the claimant actually worked. The 2 disputes in this case are:
- Who should bear the cost if the respondent is compelled to close and cease to trade during a time when the claimant is still employed by the respondent, is it entitled not to pay the claimant when for reasons and periods outside its control it is not able to trade; or is the claimant entitled to be paid in accordance with her contract during any period when she is ready willing and able to work her contracted hours?
As long as the employment contract subsists and as long as the employee is ready, willing and able to work she is entitled to be paid in accordance with the contract. If for whatever reason the employer no longer has work for the employee to perform it is open to it to dismiss her by reason of redundancy, or to retain her. What is not open to it is simply to cease to pay her for that period unless there is some contractual provision entitling it to do so; generally for lay off or short time working.
- If the respondent is bound to pay the claimant in accordance with her contract, what are its terms?
The terms relied on for this issue are the claimants working hours.
The respondent also contended that there was a contractual variation during lockdown by which the claimant was not required to attend work and they were not required to pay her. The respondent’s case was therefore, that due to the change, there was no obligation to pay.
It was found there was no evidence of any genuine agreement as to any contractual variation. With regards to which party’s interpretation of the contract is correct, it was a matter of reviewing the contractual clauses with regards to the hours of work the claimant was required to work and as such the judgement was in favour of the claimant, and asserted the contract entitled her to a minimum thirty hour week.
Miss P Dubrowska v JK Advice Centre Ltd: 2206642/2021
The Tribunal ordered the respondent to pay the claimant a sum of £445.50 for failing to provide the claimant with a written statement of particulars as required under section 1 of the Employment Rights Act 1996.
Miss J Baptiste v The Healthy Living Platform Ltd: 2301933/2021
The respondent failed to provide a written statement of initial employment particulars and is ordered to pay the sum of £1400 (2 weeks pay) to the claimant.
Ms L Hancock v Hollinway Limited t/a WOWYAUCHOW Altrincham: 2405920/2020
The claimants claim that the respondent failed to provide her with a written statement of particulars was successful.
Miss J Renn and Mr J Schofield v The Deltic Group Limited (in Administration): 2305930/2020 & 2405931/2020
The respondent failed to give Miss Renn a statement as required by section 1 of the Employment Rights Act 1996 and at the date when proceedings began, the respondent was in breach of the duty under section 1. It was found to be just and equitable to award the higher amount provided within section 38 of the Employment Act 2002. The respondent was ordered to pay Miss Renn £1326.
Mr J Fowler v Bluesnow Ltd T/a Richard Thomas Conservatories, Extensions & Windows: 1405496/2020: Judgment
The claimant was not provided with written particulars and is awarded 2 weeks’ pay (capped at £538 a week) amounting to £1076.
Ms C. Kindris v SMB Housekeeping Services Ltd: 2204774/20
The claimant was employed from 26 February 2019 and later provided an employment contract in April 2020 which entitled her to one month’s notice of termination by virtue of the contract. The claimant’s employment was terminated on 8 April 2020 by being given notice by letter. The claimant was not paid for the notice period and the claimant is entitled by contract to one month’s pay in lieu of notice.
There is a claim under section 38 of the Employment Act for failing to provide a statement of particulars. The Act provides for an award of 2-4 weeks pay if the statement of particulars required by section 1 of the Employment Rights Act 1996 had not been provided when proceedings commenced. However, a statement was provided at or before the dismissal in April 2020 and proceedings began on 6 August 2020. By that date, the statutory particulars had been provided and as such there was no reward.
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