Mr E Bawden v Mr Thomas Parkin T/a Parks Electrical: 1403852/2018
JUDGMENT
The judgment of the tribunal is that the claimant’s claims are dismissed.REASONS
[1]In this case the claimant Mr Ewan Bawden brings a claim for accrued but unpaid holiday pay, and for failure to issue a written statement of terms and conditions of employment, against his ex-employer Mr Thomas Parkin who trades as Parks Electrical. The respondent denies the claims.[2]The claimant made an application to amend his claim which has been refused for reasons which I have set out in detail in a written judgment of today’s date which dismisses that application to amend.[3]The parties also agree that the claimant’s claim for accrued but unpaid holiday pay which was outstanding at the termination of his employment was paid by the respondent in full in October 2018, and before the claimant issued these proceedings on 5 November 2018. There was therefore no valid claim for accrued holiday pay at the time these proceedings were issued.[4]The only remaining claim is one in which the claimant seeks an award under section 38 of the Employment Act 2002 for failure by the respondent to issue a Case No. 1403852/2018 written statement of the terms and conditions of his employment in accordance with section 1 of the Employment Rights Act 1996. I have been referred by the respondent to the judgment of HHJ McMullen QC in Scott-Davies v Redgate Medical Services UKEAT/0273/06/LA, and in particular at paragraph 13, and I apply that judgment. Given that there is no valid claim before the tribunal the preconditions of section 38 of the Employment Act 2002 are not met, and this tribunal does not therefore have jurisdiction to make any award under that section.[5]Given that the holiday pay claim has already been paid before the issue of these proceedings, and this Tribunal has no jurisdiction to make the award sought under section 38 of the Employment Act 2002, I hereby dismiss the claimant’s claims.