UPON APPLICATION made orally by the respondent’s representative following the delivery of the judgment on 27 March 2026 and in accordance with Rule 69 of the Employment Tribunal Procedure 2024. The reconsidered judgment of the Tribunal is that:(1) The complaint of inequality of pay on grounds of sex contrary to Chapter 3 of Equality Act 2010, is not well-founded and is unsuccessful.(2) When the proceedings were begun the respondent was in breach of its duty to provide the first claimant with a written statement of employment particulars.(3) However, because this successful complaint falls within section 11 of the Employment Rights Act 1996 and is not a relevant jurisdiction where section 38 of the Employment Act 2002 applies, no award for this failure can be made.
REASONS
Introduction
[1]Reasons for the substantive part of this judgment including findings of fact were provided orally to the parties at the final hearing during the afternoon of 27 March 2026.[2]These reasons are solely provided in order that the parties have full reasons of why the respondent’s application for reconsideration following the oral delivery of the judgment on 27 March 2026 and before the final hearing concluded.[3]The respondent’s representative made an application for reconsideration during the course of the final hearing in accordance with Rule 69. They argued that the financial award made in relation to the successful complaint brought under section 11 of the Employment Rights Act 1996 could not be subject to a payment under section 38 Employment Act 2002.[4]The claimant was provided with an explanation regarding the reasons for the respondent’s application by Judge Johnson and given an opportunity to make any representations disputing the grounds for the application. The claimant has not provided any representations at the time that this judgment was formally reconsidered on 13 April 2026. The reconsideration[5]The original judgment of the Tribunal firstly dismissed the claimant’s equal pay claim.[6]However, the judgment also determined that the respondent had failed to provide the first claimant with a written statement of employment particulars. This was contrary to section 1 of the Employment Rights Act 1996 and section 11 provides the Employment Tribunal with jurisdiction to hear complaints brought by workers seeking enforcement the duty under section 1.[7]The second part of the judgment in paragraph (2) included the following words relating to this successful complaint: ‘It is just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £420.’[8]However, having considered the respondent’s application seeking reconsideration, the Tribunal accepts that section 38 of the Employment Act 2002 does not permit such an award. Section 38 only permits us to make an award for a failure to give statement of employment particulars in relating to circumstances where a claim is made in favour of the claimant under any of the jurisdictions listed in Schedule 5 of the 2002 Act.[9]Schedule 5 of the 2002 Act identifies ‘TRIBUNAL JURISDICTIONS TO WHICH SECTION 38 APPLIES’. However, the only complaints under the Employment Rights Act 1996 which are included are section 23 (unauthorised deductions), section 48 (detriments in employment), section111 (unfair dismissal) and section 163 (redundancy payments).[10]The claimant’s successful complaint under section 11 is not included under Schedule 5 and is therefore not subject to awards under section 38 of the 2002 Act. Consequently, while a declaration of a failure can be made under section 1 relating to written statements of employment particulars, no financial remedy is payable. Moreover, because the claimant no longer works for the respondent, it appears unnecessary for any determination of her particulars to take place as permitted by section 11.[11]Consequently, the judgment has been varied in accordance with section 70 and all references to a payment being made under section 38 of the 2002 are revoked and removed from paragraph (2) of the judgment. Paragraph (3) of the reconsidered judgment has been included as a result of this decision and to explain why no payment arises following the declaration in paragraph (2). ____EJ A Johnson