Prior to April 2020, the law required employers to provide employees with a statement of terms and conditions within two months of starting their employment. In Iqbal (t/a Smokin’ Rooster) v Singh, the Employment Appeal Tribunal (EAT) held that employers can be penalised for a period of employment lasting less than two months, if a successful claim had been brought against them.
Basic facts
Mr Singh claimed that the owner of the takeaway restaurant in which he had worked from January to May 2017 and from mid-July to the end of August 2017 had made unlawful deductions from his wages on both occasions. He also claimed that the owner (Mr Iqbal) had failed to pay him the national minimum wage. On his claim form, he cited Mr Iqbal as his employer.
In his response to the claim, Mr Iqbal argued that he was not Mr Singh’s employer. Instead Mr Singh was employed by Smokin’ Rooster Ltd, a limited company of which he and his brother were directors.
A Notice of Hearing letter was then sent out to the parties in which it was stated clearly that an hour had been allocated to hear the evidence that each party would need to produce to back up their claims.
Tribunal decision
When it came to the day of the hearing, however, Mr Iqbal failed to produce relevant documentary evidence (such as payslips or a P45) showing that Mr Singh was employed by Smokin’ Rooster Ltd. However, he did include a copy of a contract of employment in the bundle of documents which he said had been given to Mr Singh.
When challenged by the judge, Mr Iqbal said he thought it was a preliminary hearing which did not require evidence. As a result, he asked for an adjournment. The judge refused, noting that the Notice of Hearing had clearly stated that the hearing would decide the claim and that the parties were responsible for bringing copies of relevant documents to it.
Preferring Mr Singh’s evidence to that of Mr Iqbal, the judge then went on to find that Mr Singh’s employer was Mr Iqbal, not the limited company of which he was a director; that he had been paid less than the national minimum wage; and that he had suffered deductions from his wages during the second period of employment. The claim for the first period failed as it was out of time.
The tribunal judge was highly critical of Mr Iqbal’s “utter failure” to comply with any of the documentary requirements of employment legislation and his fabrication of the contract of employment which Mr Iqbal asserted that he had given to Mr Singh. Apart from being almost illegible, the judge suspected that Mr Iqbal had cut and pasted Mr Singh’s signature onto it.
The judge therefore held that Mr Singh had not been provided with a statement of terms and conditions of employment as required by section 1 of the Employment Rights Act 1996 and made an additional award of four weeks' pay to Mr Singh.
Mr Iqbal appealed against the tribunal’s refusal to adjourn and the decision to increase the award on the basis that the second period of employment was less than two months which meant that section 1 did not apply.
EAT decision
Dismissing the appeal, the EAT held that the tribunal had given clear reasons for the refusal to allow the adjournment and there was no error of law in its reasoning.
With regard to the second ground, the EAT held that Mr Iqbal was in breach of his duty to provide a statement during the first period of Mr Singh’s employment. That duty continued even after Mr Singh left his job and carried over into the second period of employment. As Mr Singh had succeeded in his claims for that second period, the tribunal was entitled to make the additional award.
Comment
The law relating to the provision of a written statement of terms of employment was changed in April 2020. The right to written terms now applies from day one of employment. A failure to provide written terms may result in a tribunal awarding an employee or worker between two to four weeks’ pay. However, the tribunal can only award compensation where the worker has brought another successful claim against the employer. This case is a useful reminder that employers are required by law to provide a written statement of employment terms to employees and workers.