Employment Act 2002

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

(1) This section applies to proceedings before an employment tribunal relating to a claim by [F1 a 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 [F2 worker], 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 [F2 worker] 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 [F3 or [F4 (in the case of a claim by an [F5 worker])] 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 [F6 worker] 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 [F7 worker] 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 [F7 worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 [F8 or [F9 (in the case of a claim by an [F10 worker])] 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 [F11 a 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 [F13 worker] 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

F1 Words 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)

F2 Word 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)

F3 Words 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)

F4 Words 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)

F5 Word 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)

F6 Word 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)

F7 Word 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)

F8 Words 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)

F9 Words 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)

F10 Word 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)

F11 Words in s. 38(6) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(5)

F12 S. 38(6A) inserted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(6)

F13 Word in s. 38(7)(a) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(7)(a)

F14 S. 38(7)(b) substituted (6.4.2020) by The Employment Rights (Miscellaneous Amendments) Regulations 2019 (S.I. 2019/731), regs. 1(2), 17(7)(b)

Commencement Information

I1 S. 38 in force at 1.10.2004 by S.I. 2004/1717, art. 2(2)