Employment Act 2002

Changes over time for: Section 38

Alternative versions:

Changes to legislation:

Employment Act 2002, Section 38 is up to date with all changes known to be in force on or before 27 May 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

s. 7(3)(e) and word inserted by 2023 c. 20 Sch. para. 36(4)(c)
s. 15(2)(bb) word omitted by 2023 c. 20 Sch. para. 43(a)
s. 15(2)(bc) inserted by 2023 c. 20 Sch. para. 43(b)

38 Failure to give statement of employment particulars etc.E+W+S

This adran has no associated Nodiadau Esboniadol

(1)This section applies to proceedings before an employment tribunal relating to a claim by [F1a worker] under any of the jurisdictions listed in Schedule 5.

(2)If in the case of proceedings to which this section applies—

(a)the employment tribunal finds in favour of the [F2worker], but makes no award to him in respect of the claim to which the proceedings relate, and

(b)when the proceedings were begun the employer was in breach of his duty to the [F2worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18) (duty to give a written statement of initial employment particulars or of particulars of change [F3or [F4(in the case of a claim by an [F5worker])] under section 41B or 41C of that Act (duty to give a written statement in relation to rights not to work on Sunday]),

the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the [F6worker] and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

(3)If in the case of proceedings to which this section applies—

(a)the employment tribunal makes an award to the [F7worker] in respect of the claim to which the proceedings relate, and

(b)when the proceedings were begun the employer was in breach of his duty to the [F7worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 [F8or [F9(in the case of a claim by an [F10worker])] under section 41B or 41C of that Act],

the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

(4)In subsections (2) and (3)—

(a)references to the minimum amount are to an amount equal to two weeks’ pay, and

(b)references to the higher amount are to an amount equal to four weeks’ pay.

(5)The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

(6)The amount of a week’s pay of an [F11a worker] shall—

(a)be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and

(b)not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week’s pay).

[F12(6A)The provisions referred to in subsection (6) shall apply for the purposes of that subsection—

(a)as if a reference to an employee were a reference to a worker; and

(b)as if a reference to an employee’s contract of employment were a reference to a worker’s contract of employment or other worker’s contract.]

(7)For the purposes of Chapter 2 of Part 14 of the Employment Rights Act 1996 as applied by subsection (6), the calculation date shall be taken to be—

(a)if the [F13worker] was employed by the employer on the date the proceedings were begun, that date, and

[F14(b)if he was not, in the case of an employee, the effective date of termination as defined by section 97 of that Act or in the case of all other workers the date on which the termination takes effect.]

(8)The Secretary of State may by order—

(a)amend Schedule 5 for the purpose of—

(i)adding a jurisdiction to the list in that Schedule, or

(ii)removing a jurisdiction from that list;

(b)make provision, in relation to a jurisdiction listed in Schedule 5, for this section not to apply to proceedings relating to claims of a description specified in the order;

(c)make provision for this section to apply, with or without modifications, as if—

(i)any individual of a description specified in the order who would not otherwise be an employee for the purposes of this section were an employee for those purposes, and

(ii)a person of a description specified in the order were, in the case of any such individual, the individual’s employer for those purposes.

Textual Amendments

F1Words in s. 38(1) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(2)

F2Word in s. 38(2)(a) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(3)(a)

F3Words in s. 38(2)(b) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 12(a)

F4Words in s. 38(2)(b) inserted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(3)(b)

F5Word in s. 38(2)(b) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(3)(a)

F6Word in s. 38(2) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(3)(c)

F7Word in s. 38(3)(a) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(4)(a)

F8Words in s. 38(3)(b) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 12(b)

F9Words in s. 38(3)(b) inserted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(4)(b)

F10Word in s. 38(3)(b) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(4)(a)