can a tribunal order a compensation uplift if it has not been pleaded?
No said the Employment Appeal Tribunal (EAT). A tribunal order of compensation will not be uplifted if it has not been pleaded.
The Claimant, Mr Levy, worked for his employer, 34 & Co Ltd, for less than a month prior to resigning. He was not provided with written particulars of employment.
When submitting his claim at the Tribunal, the Claimant made a claim for unlawful deduction from wages. The Respondent had the opportunity to respond to the claim and did so but decided not to take part any further in the proceedings. At later date, in his schedule of loss, the Claimant requested an uplift of the award (if successful) pursuant to under section 38 of the Employment Rights Act 2002 for his employers’ failure to provide written particulars of employment. This is a useful tool for a Claimant to increase their tribunal compensation.
The Claimant was successful in his claim for unlawful deduction from wages, but the Tribunal did not order the uplift. The Claimant appealed this decision.
The EAT held that the Tribunal did not have to award the uplift when making an award for unlawful deduction from wages, where the Respondent did not have notice of the application and where the facts, on further investigation, would not have justified the uplift.
At the time of his resignation the Claimant had been employed for less than a month and the Respondent was not required to provide written particulars of employment. The provisions under section 1 of the Employment Rights Act 1996 previously required an employer to give written particulars within 2 months of an employee stating (this has now been amended to 1 month).
But an important lesson: if it isn’t pleaded it may not be awarded, hence the wisdom of taking advice.
The full judgment is available here.
You do not require legal representation to bring a claim in the Employment Tribunals, however it is by no means a straightforward arena in which to bring a claim. Early legal advice is recommended to ensure that you do not miss out on bringing valuable claims because you may not be able to add them in at a later date.
This blog was written by Joanne Sinclair, Trainee, didlaw.