Employment Judge TynanMr C Hensall (instructed by Solicitor) for claimantNot represented for respondentDate 20 December 2024
JUDGMENT
[1]The Tribunal declares that the Respondent made an unlawful deduction from the Claimant’s wages and Orders the Respondent to pay the sum of £2,956.51 (gross) to the Claimant in respect of that deduction.[2]The Claimant’s further entitlement to a remedy in respect of his unfair dismissal and the Respondent’s failure to provide him with a written statement of particulars of employment shall be determined on paper.[1]The Tribunal makes a compensatory award of £14,736.81 against the Respondent in favour of the Claimant in respect of his unfair dismissal.[2]The Tribunal considers it just and equitable to increase the Claimant’s award by the higher amount of 4 weeks’ pay in respect of the Respondent’s breach of section 1(1) of the Employment Rights Act 1996. The award is therefore increased by £1,538.46. Recoupment[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply as follows:(a) The monetary award £16,275.27(b) The prescribed element £14,736.81(c) The period of the prescribed element: 13 November 2021 to 11 November 2022(d) The amount by which the monetary award exceeds the prescribed element is: £1,538.46[1]The Respondent is granted an extension of time to 5 February 2024 to make its application for reconsideration.[2]The Tribunal determines that it is necessary in the interests of justice to reconsider its Judgments dated 10 October 2022 and 28 June 2023.[3]On reconsideration:a. Paragraph 1 of the Tribunal’s Judgment dated 10 October 2022 is affirmed;b. Otherwise, the Tribunal’s Judgments dated 10 October 2022 and 28 June 2023 are revoked.
REASONS
[4]The Claimant has made two claims against the Respondent. He was representing himself when he presented his first claim (3323254/2021), but had instructed solicitors when he presented this, his second claim. Presumably on their advice, he withdrew his first claim, which was dismissed on 24 May 2022 following its withdrawal.[5]The Respondent accepts that the first claim was received by it, as a copy of the Notice of Claim was discovered earlier this year in a desk drawer of the Respondent’s former HR Manager, John Sutton. Mr Sutton left the Respondent’s employment on 30 May 2022. He seems to have completed form ET3 in respect of the first claim, as a copy of this was also discovered in his 1 of 5 desk drawer. Although the completed form is annotated at the top with the words “EMAILED 09.03.22” there is no record on the Tribunal’s systems of the ET3 having been emailed to the Tribunal or otherwise received by it. I find that having completed the form by hand, Mr Sutton failed to file it with the Tribunal. In her evidence to the Tribunal, Louise Allen, the Respondent’s Finance Manager said that Mr Sutton was going through a difficult divorce or relationship breakdown at the time, was distressed at times and that he had neglected certain of his duties.[6]I am satisfied that this second claim was served on the Respondent. It was sent to the same address as the first claim, namely to the Respondent’s registered office. I find that it would have come to Mr Sutton’s attention as the first claim did. Ms Allen states that the only document that has come to light in relation to the second claim is a letter from the Tribunal to the Claimant dated 28 May 2022, copied to the Respondent, headed, “Rule 21 Judgment – Claim not Quantified”. Although it has the appearance of a Judgment, in fact it advised the Claimant that whilst a judgment could be issued in the absence of any Response from the Respondent, the Tribunal needed further information from the Claimant. That letter would have been seen by Mr Sutton in his final days of employment. He neglected to deal with the matter.[7]Although Mr Sutton left the Respondent’s employment on 30 May 2022, his desk drawers were seemingly not checked for correspondence until on or around 18 January 2024 after an enforcement officer had attended the Respondent’s premises to enforce a High Court Writ of Control. Given that Mr Sutton is said to have been neglecting his work in the period prior to his departure, but in any event as a matter of good business practice, I find it inexplicable that no-one at the Respondent thought to check Mr Sutton’s desk drawers after he left the business to ensure they did not contain any work matters that required attention, or simply any personal belongings of his. Even had he not been neglecting his work, the Respondent might have cleared his work station of any papers or belongings as part of an orderly departure from the business, including an effective handover of his duties.[8]Prior to the enforcement officer’s attendance on 18 January 2024, others in the Respondent’s business were aware of a claim by the Claimant, after a letter from Quality Bailiffs had been posted through the door of the registered office headed “Notice of Enforcement”. Yet the decision was seemingly taken to see if anything further happened. Ms Allen does not clarify who took that decision but in my judgment it was ill-advised and inexcusable. For a little over three months the Respondent was on notice that the Claimant had seemingly secured a judgment against it, yet it took no action to find out more. A call to Quality Bailiffs would almost certainly have revealed that the Claimant had pursued a claim in the Employment Tribunals and secured a Judgment in default of any Response having been filed. Instead, the Respondent only acted after the enforcement officer became involved. It evidences to me a pattern of neglect that extends beyond Mr Sutton’s actions in failing to take action on the two claims and subsequent Rule 21 letter.[9]The question is whether, in such circumstances, it is necessary in the interests of justice to reconsider the Judgments of 10 October 2022 and 28 June 2023. 2 of 5[10]Rule 70 of the Employment Tribunal Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so.[11]In Outasight VB Ltd. v Brown UK EAT/0253/14, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” These principles were recently affirmed by His Honour Judge Shanks in Ebury Partners UK Ltd v Acton Davis [2023] EAT 40.[12]In T and D Transport (Portsmouth) Ltd v Limburn 1987 ICR 696, EAT (a decision under previous rules of procedure), the EAT confirmed that, where notice of hearing has been properly sent, it is for the employer to satisfy the Tribunal that the notice was not properly received. I have already set out why I conclude that this second claim was received by the Respondent. However, I do not consider that fact alone is necessarily fatal in terms of its application for reconsideration i.e, that Limburn established any rule or principle that an application for reconsideration should be refused where a Judgment has been secured in default in circumstances where the claim was received by the Respondent but a response was not filed. The 2013 rules of procedure confer a broad discretion on Tribunals to reconsider judgments where this is necessary in the interests of justice. In my judgment, the Respondent should certainly not be ‘punished’ for Mr Sutton’s neglect of the matter, even if his inaction has been compounded by the Respondent’s handling of his departure and lax response to the letter from Quality Bailiffs.[13]Although the Respondent might be regarded as the author of its own misfortune, I am also mindful of the potential to confer a windfall on the Claimant if the Respondent has arguable grounds for resisting his claims. In this regard, I would distinguish between his claim in respect of unauthorised deductions from wages and his claims for unfair dismissal and failure to provide a written statement of particulars of employment. The Respondent has not suggested that wages were not due to the Claimant, rather it claims that the wages due to him are outweighed by sums owed by him to it in respect of missing (allegedly stolen) stock and by reason of falsified timesheets. However, the sums involved have not been quantified, save that they are said to exceed the amount of his outstanding wages. The Respondent has the burden of establishing both that it was entitled to make deductions from the Claimant’s wages and the amounts in question. Whilst it has adduced evidence in support of its contention that it was authorised to make deductions from his 3 of 5 wages, Ms Allen’s evidence as to the sums to be deducted comprises nothing more than an assertion on her part. She refers to an investigation, but no further details are provided, including the Respondent’s calculations as to the value of the missing stock and why the Claimant might be responsible for this, or as to the losses that allegedly resulted from falsified timesheets and, again, why the Claimant might be responsible for these. This lack of detail and evidence is reflected in the Respondent’s draft Grounds of Resistance which likewise proceed on the strength of a bare assertion in paragraph 16 that the sums owed by the Claimant, and therefore liable to be deducted from his wages, exceeded the amount of his outstanding wages. Even if the Respondent’s solicitors were under pressure of time to draft and submit Grounds of Resistance in support of the reconsideration application, that does not excuse Ms Allen’s subsequent failure to address the matter in any further detail some months later in her witness statement or her inability to provide that essential information when asked about the matter by me today[14]In my judgment, there is no proper basis for me to revoke or vary paragraph 1 of the Tribunal’s Judgment of 10 October 2022 that the Respondent made unauthorised deductions from the Claimant’s wages.[15]By contrast, I am satisfied that it is necessary in the interests of justice to set aside the Judgments in so far as the Claimant succeeded in his claims for unfair dismissal and for failure to provide a written statement of particulars of employment. As I say, I am mindful of the potential to confer a potentially unfair windfall on the Claimant in circumstances where the Respondent has put forward an arguable case as to why it dismissed the Claimant for misconduct rather than, as he alleges, because he asserted his statutory rights and why it says it complied with its duty under s.1 of the Employment Rights Act 1996 to provide him with a written statement of particulars of employment. Those respective matters are addressed in detail in Ms Allen’s statement and in the Respondent’s Grounds of Resistance. As regards the reason for dismissal, the Respondent has been consistent in stating that the Claimant was dismissed for misconduct (including in its letter dismissing him from its employment, in Mr Sutton’s draft ET3 and in these proceedings) and, as regards s.1 of the 1996 Act, it has produced a terms and conditions of employment document purportedly signed by the Claimant. The Claimant was awarded £16,275.27 in respect of these two claims, a not insubstantial sum of money. If, as I am satisfied, the Respondent, albeit very belatedly, has come forward with arguable grounds to resist his claims, I consider it necessary in the interests of justice for the Respondent to be permitted to pursue these arguments to a full hearing, even if the effect may be to keep the Claimant out of two awards that it may transpire he was entitled to, if his claims succeed on their merits at a contested hearing.[16]I have made separate case management orders to ensure that this case comes back before a Tribunal for substantive determination without further undue delay. I have cautioned the Respondent that they must now ensure these proceedings receive their attention and that they comply with the orders I have made. 4 of 5[1]This decision was given orally on 20 December 2024. The claimant requested written reasons.[2]By a claim form presented on 25 January 2022 the claimant Mr Simbarashe Homwe brings claims of unfair dismissal, breach of contract for notice pay, unlawful deductions from wages, holiday pay and a failure to provide written particulars of employment. This remote hearing[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[4]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.[5]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal.[6]The participants were told that was an offence to record the proceedings.[7]The witnesses were all in different locations and had access to the relevant written materials. I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence.
The background
[8]A default Judgment under Rule 21 was previously given in this case by Employment Judge Tynan upholding the claim for unfair dismissal under section 14 Employment Rights Act 1996 (ERA) and awarding the claimant £16,275.27 inclusive of an award under section 38 ERA.[9]The respondent applied for Reconsideration. A hearing to consider this took place on 26 July 2024. Judge Tynan revoked his previous Judgments of 10 October 2022 and 28 June 2023 and made case management orders for this hearing.[10]The respondent was given an extension of time to 9 August 2024 to file an ET3.
The issues
[11]A claim under section 104 ERA is a claim of automatically unfair dismissal. In such claims, the Tribunal is focused on the reason why employment ended rather than on whether the employer followed a fair procedure. In this case, the question is whether, as the claimant alleges, he was dismissed for asserting that the respondent infringed his statutory right to payment of his wages or, as the respondent asserts, they believed he was guilty of misconduct.[12]The burden of proving the reason for dismissal lies with the claimant because he had less than 2 years’ service.[13]If the claim succeeds in his claim, the Tribunal will go on to consider what remedy to award him in respect of unfair dismissal, including whether there should be an award under section 38 Employment Act 2002 if, when the proceedings were begun, the respondent was in breach of its duty under section 1 ERA to provide particulars of employment.[14]The issues for the tribunal were:a. What was the reason for dismissal? Was it because the claimant asserted his statutory right to payment of his wages or was it for misconduct?b. Was there a failure by the respondent to provide written particulars of employment?c. If so, is the claimant entitled to an award under section 38 Employment Act 2002?d. The claimant accepts that he has been paid for unlawful deductions from wages, holiday pay and notice pay. This has already been the subject of a Judgment from Employment Judge Tynan. Witnesses and documents[15]There was an electronic bundle of documents of 134 pages. The claimant submitted 5 separate documents on the morning of the hearing, relating to his recruitment plus a holiday request. I was also sent the Reconsideration Bundle that was before Employment Judge Tynan. The tribunal heard from the claimant.[17]For the respondent the tribunal heard from Ms Lorraine Abbott, Senior Cluster Manager and Ms Louise Allen, Finance Manager.[18]I had written submissions from the respondent and oral submissions form both parties. All submissions and any authorities referred to were fully considered, whether or not expressly referred to below.
Findings of fact
[19]The claimant worked for the respondent from 28 September 2021 to 12 November 2021 as a Store Manager based at the respondent’s Milton Keynes store. It is not in dispute that the claimant had less than two years’ service with the respondent.[20]The respondent is a clothing retailer employing about 200 people in Great Britain. The respondent employed about 3 people at Milton Keynes store where the claimant worked.[21]The claimant’s duties included opening and closing the store, sorting and putting out stock, dealing with customers, doing sales, reconciling at the end of the day, rotas and time sheets for staff including his own. The claimant’s contract of employment[22]The claimant’s offer of employment was dated 28 September 2021 at page 18. The contract contained a probationary period of three months (page 21 clause 17). This meant that the probationary period ran to 27 December 2021.[23]The issue was whether the respondent had given the claimant the written particulars of employment. The document in the bundle purported to have been signed by the claimant on 28 September 2021 (page 23) and for the respondent by the then Area Manager, Ms Lorraine Abbott (page 19).[24]The signatures looked almost identical. Both the claimant and Ms Abbott said the signatures appearing in the document were not theirs. The claimant denied ever having seen the written particulars.[25]It was accepted by the respondent in submissions that the evidence as to the provision of the written particulars was “quite unsatisfactory” and agreed that there was no direct evidence of the claimant having been given them.[26]The fact that both the claimant and Ms Abbott denied that the signature on the document was theirs and that the signatures looked almost the same, leads me to find that the signatures were added by a third party and neither of them signed that document.[27]Ms Abbott’s oral evidence was that within the normal recruitment process contracts are normally issued at the three month point after completion of the probationary period. The claimant was dismissed before the end of his probationary period; this ended on 27 December 2021 and therefore I find on Ms Abbott's evidence that the claimant was not given written particulars of employment. Pay issues[28]On 28 October 2021, the claimant received a payslip from the respondent (page 72-73) confirming that his gross salary of £1,666.67 and net £1,562.31 would be paid that day. The claimant did not receive his pay so he called Ms Abbott to raise this with her.[29]Ms Abbott had only recently been promoted to Cluster Manager. She was not involved in the claimant’s recruitment. As she was not responsible for payroll, she advised the claimant to contact Mr John Sutton, an HR Manager.[30]The claimant was told that his pay would be processed on 29 October 2021 if he provided confirmation of his bank details. On 29 October 2021 the claimant confirmed his bank details via his colleague Robyn (page 74) but he did not receive his salary.[31]On 3 November the claimant chased up payment of his salary (page 75) with Mr Sutton.[32]On that same day, 3 November, Ms Abbott was contacted by Mr Sutton who told her that he had received numerous emails and calls from the manager of the Milton Keynes shopping centre in which the respondent’s store is situated. The Centre Manager, Shelley, said that on a number of occasions the store was opening later and closing earlier than its advertised opening hours and this was in breach of the terms of the respondent’s lease. Mr Sutton asked Ms Abbott to investigate. 4 November 2021[33]On 4 November 2021 Ms Abbott attended the store where she met with the claimant, who she found working in the back of the store. She carried out an investigation and met with one the Centre Managers. They found that on 9, 17, 19 and 23 October 2021 when the claimant was lone working, the store did not open for its full hours, despite the claimant submitting a time sheet saying that he had worked his full hours.[34]Ms Abbott spoke to the Centre Manager and security guards who said they had been watching the claimant on their security cameras and they regularly saw him leaving the store unattended and open to theft. They said this was when he went to “Five Guys” for his lunch or to go to other units in the centre. The claimant agreed he went out to get his lunch if he was working alone or if he wanted to use the toilet so he had to close the store.[35]Ms Abbott’s evidence was that there is a procedure for closing the store if it was to be left unattended. The security staff also said they saw the claimant leaving the store with large boxes which they believed to be stock from the store. The investigation led Ms Abbott to the view that the store was being opened late or closed early when the claimant was working there alone. She asked to see the CCTV but said the security staff did not agree to show it to her. She accepts she did not see the CCTV footage.[36]An investigation was also carried out into missing stock and Ms Abbott believed that stock was missing. The claimant said in oral evidence he “could not recall” taking any stock. The decision to dismiss[37]On the same day that she carried out this investigation, being 4 November 2021, Ms Abbott put a hold on the claimant’s wages (page 24). In an email to Mr Sutton, titled “Milton Keynes Manager Simba Investigation” she said: “Hi John Can you please put a hold on the wages for the above employee please after my investigation below. I received emails reading non payment of wages of October payroll, fully aware this was bank account wrong details. I was in Milton Keynes today to do a store visit as was under performing and required a necessary visit. On entering the unit I was approached by the centre Manager Shelley and asked if i could go to her office as there was some irregularities with the store opening time. With the information Shelley has given me she has requested that she would like this off the record and gave me hints on whats been happening in the Milton Keynes store. Her only concern was how late the store was opening and that the manager was leaving the store unattended while lone trading to go and get his lunch, leaving the store unsecured and risk of theft. ( no prove but hear say) I have been instore today to do thorough investigation, looking back through all procedures and compliance since the day the manager started. Please see below my findings [details of dates and store opening times were set out]”[38]Ms Abbott concluded the message by saying: “Have put an advert on indeed for a new Manager…..My solution would be to get cover….until a new manager is recruited”. I find that on 4 November 2021 Ms Abbott made the decision to dismiss the claimant and replace him with a new manager.[39]I am aware that the claimant considers that he was badly treated in terms of this investigation. I explained to him that the procedural fairness of his dismissal was not a matter for me to decide upon, because he did not have 2 years’ service with the respondent.[40]I had to consider what was in Ms Abbott’s mind when she made the decision to dismiss the claimant and place an advert for a new manager. In terms of the claimant’s queries about his pay, all she knew by 4 November was that at the end of October he had raised a query and she had referred him to Mr Sutton because she did not deal with payroll.[41]The claimant said for the first time in oral evidence, that on 3 November 2021 he told Ms Abbott that if he did not get his wages he was “thinking about the whole tribunal thing” and he said this may have featured in her thinking. The claimant did not mention this in his claim form or his witness statement when it was a highly material piece of information. When pressed on the matter in cross-examination he said “I believe I might have said that” which showed me he was not certain that he said it. As this very important matter was not mentioned prior to this hearing, I find on a balance of probabilities that he did not say this to Ms Abbott on 3 November 2021.[42]I find that Ms Abbott made the decision to dismiss the claimant because she believed, as a result of her enquiries on 4 November 2021, that he had committed gross misconduct by putting in false timesheets and that he had possibly also taken stock from the store.[43]The claimant was not happy about the investigation, but the procedural fairness was not in issue for this tribunal. The question for this tribunal was what was the reason, or principal reason for dismissal? Further queries about pay[44]My finding above is that Ms Abbott made the decision to dismiss on 4 November 2021. After that date, the claimant continued to raise with Mr Sutton the matter of his pay.[45]By 5 November the claimant was less than happy about the situation and sent a message in capital letters (not replicated here) saying “This is now the 5th of November and I still have not had any updated with regards to my salary being paid into my account. Please advise accordingly” (page 76).[46]He sent further chasers on 9 November 2021 (pages 77 and 78).[47]On 10 November 2021 the claimant sent an email explaining that he had not been paid since he started work on 16 September and that this was causing him problems and anxiety (page 79). The dismissal meeting[48]On 12 November 2021 Ms Abbott attended the store to meet with the claimant to discuss the findings from her investigation. The claimant denied receiving any email informing him about this meeting and there was no email in the bundle. The claimant said he had no prior knowledge of the meeting.[49]Ms Abbott was accompanied by a Senior Store Manager Mr Reynolds as a notetaker and a witness to the meeting. Ms Abbott said the claimant became angry. He denied this. The claimant said he told Ms Abbott that he wanted his wages. Ms Abbott said she told the claimant that if he did not calm down she would call security. The claimant said that Ms Abbott had arrived accompanied by security.[50]Ms Abbott said she called security when the claimant became angry telling them that she was looking to dismiss him and that he was being aggressive. Two security guards attended. Ms Abbott says that the claimant was dismissed. The claimant said that he was not dismissed.[51]The claimant accepted that he was asked to leave the shop. Ms Abbott said that initially he refused to hand over his store keys but was persuaded to do so when the two security guards intervened. The claimant said the keys were already on the table, so he did not need to be asked for them.[52]Ms Abbott said that the claimant said this was not the end of the matter and he would take the company “to the cleaners”. He denied saying this.[53]I find that the situation became heated in the meeting on 12 November 2021 and that as a result neither party has a perfect recollection of what happened. It is enough for me to find that the claimant was dismissed at that meeting. He agreed that he did not attend work after that date.[54]In support of my finding that the claimant was dismissed at that meeting, I saw a Leaver Form (page 26) dated on the day of the meeting, 12 November 2021. It was completed by Ms Abbott and gave the reason for dismissal as “falsifying time sheets and pos stock taken”. This supports my finding that the reason for dismissal was as given by Ms Abbott and not because the claimant had raised issues about his pay.[55]I find that the claimant knew he had been dismissed on 12 November and that is why he did not attend work after that date. I am supported in this finding by paragraph 10 of his Particulars of Claim which expressly said that he was dismissed on 12 November 2021. The claimant said in paragraph 10 of his Claim that the reason he was given, was that he had failed his probationary period. It was his own case that he was dismissed on that date.
The relevant law
[56]Section 104(1) ERA 1996 provides that an employee who is dismissed shall be regarded ….as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee…. (b)alleged that the employer had infringed a right of his which is a relevant statutory right.[57]It is immaterial as to whether the employee has that right or whether or not the right has been infringed. The claim that it right has been infringed must be made in good faith.[58]The relevant statutory rights include any rights conferred under the ERA 1996 and this includes the right not to have unlawful deductions made from wages – including non-payment of wages.[59]Section 1 ERA give a worker the right to a written statement of particulars of employment. It sets out the particulars to be contained in that statement. Under section 12 if the tribunal finds that there has been a failure to provide that statement, it shall make a declaration to that effect.[60]Section 38 Employment Act 2002 applies in proceedings before an employment tribunal relating to any of the jurisdictions in Schedule 5. This includes a claim for unlawful deductions from wages.[61]Section 38 says that in those circumstances, where the tribunal finds in favour of the worker and makes an award to the work in respect of that claim, the tribunal must, subject to subsection (5) make an award of a minimum amount and may if it considers it just and equitable, make an award of the higher amount.[62]The minimum amount is 2 weeks’ pay; the higher amount is 4 weeks’ pay.[63]Under subsection (5) the duty does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.
Conclusions
[64]I have made a finding of fact that the reason for dismissal was because Ms Abbott believed that the claimant had committed gross misconduct. I make no finding as to whether the claimant actually committed gross misconduct. My finding is that this was Ms Abbott’s reason for dismissing the claimant.[65]The reason for dismissal was not that the claimant had asserted his statutory rights as to payment of wages.[66]The claim for automatically unfair dismissal therefore fails and is dismissed.[67]I have also found that the claimant was not given written particulars of employment and this is contrary to section 1 Employment Rights Act 1996. Section 38 Employment Act 2002[68]I heard submissions from the respondent as to whether section 38 Employment Act 2002 was engaged on the question of remedy.[69]The respondent agreed that to receive an award under section 38 Employment Act 2002, for failure to provide written particulars, the claimant had to succeed on a claim set out in Schedule 5 to that Act. The respondent agreed that a claim for unlawful deductions from wages under section 23 Employment Rights Act, fell within Schedule 5.[70]The respondent agreed that the claimant had satisfied the condition under section 38 Employment Act 2002 in that the tribunal had found in his favour in a claim for unlawful deductions. This was in the Judgment of Employment Judge Tynan dated 11 October 2022. This Judgment said as follows: 1. The Tribunal declares that the Respondent made an unlawful deduction from the Claimant’s wages and Orders the Respondent to pay the sum of £2,956.51 (gross) to the Claimant in respect of that deduction. 2. The Claimant’s further entitlement to a remedy in respect of his unfair dismissal and the Respondent’s failure to provide him with a written statement of particulars of employment shall be determined on paper.[71]The parties were in agreement that the judgment sum for unlawful deductions from wages was paid to the claimant.[72]Mr Starcevic for the respondent submitted that in the Judgment of 11 October 2022 the tribunal had not applied the uplift under section 38 and that Judgment was not appealed or reconsidered. It was submitted that the only basis upon which to apply an award under section 38, was if the claimant succeeded on his unfair dismissal claim. The respondent submitted that if the unfair dismissal claim failed, this tribunal could not revisit the judgment on unlawful deductions. The respondent said that this would be making an uplift on a Judgment that was over 2 years old.[73]I do not agree with the respondent’s submission. Paragraph 2 of the Judgment of 11 October 2022 left live the question of whether the respondent had failed to provide the claimant with written particulars of employment. This matter was live and in issue for this hearing on 19 and 20 December 2024.[74]Judge Tynan was not in a position to know what the ultimate finding would be on the issue of written particulars. He was not in a position to say whether any entitlement might arise under section 38 as a result of the claimant’s earlier success on the unlawful deductions claim.[75]I find that the claimant’s rights under section 38 are not removed when there remains a live issue in the proceedings, as to whether he was given written particulars.[76]This tribunal has made a finding that the claimant was not given written particulars. In the same proceedings the claimant succeeded in a claim under section 23 Employment Rights Act 1996. Section 38 is engaged and the claimant is entitled to an award.[77]Section 38 mandates the making of an award if the conditions are met. I do not have a discretion unless subsection (5) is engaged where there are exceptional circumstances that would make the award or the increase to the award unjust or inequitable. This was not relied upon by the respondent. The amount of the award under section 38 EA 2002[78]In terms of the figures, Judge Tynan calculated the amount of an award of 4 weeks’ pay in a Remedy Judgment dated 28 June 2023. The award was for 4 weeks’ pay in the sum of £1,538.46. That Judgment was set aside and that gave rise to this hearing.[79]I adopt the figure in the Remedy Judgment of 28 June 2023 that 4 weeks’ pay amounted to £1,538.46. On that figure, I find that a week’s pay was £384.62.[80]Section 38(2) mandates the making of the award. It should be made in the minimum amount of 2 weeks’ pay and there is a discretion to increase it to the higher amount of 4 weeks’ pay if the tribunal “considers it is just and equitable in all the circumstances”.[81]The respondent made the following submissions. The award made in the Remedy Judgment of 28 June 2023 was made when the Judge had no explanation as to the circumstances. The respondent submitted that they do adopt a process, they do issue contracts but they do not issue them immediately. The respondent submitted that it was not just and equitable to award the higher amount.[82]The claimant submitted that Judge Tynan had made a decision and he saw no reason why there should be any changes to that.[83]I accepted the respondent’s submission that this was not an employer that had a complete disregard for the need to issue written particulars. Their error lay in the delay in which they did so. I decided that it was not just and equitable to award the higher amount. I make an award of 2 weeks’ pay in the sum of £769.24. The calculation of that figure was agreed by the respondent.