A Duck is a Duck – Obviously!
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
But if the legislation says “(b)when the proceedings were begun…”, it’s not just probably, but clearly means “when… begun” – there’s no probably about it.
Govdata Ltd v Denton
In what appears to be a most unnecessary burden on it, the Employment Appeal Tribunals has spent its time & resources to confirm that it is not always necessary to consider any issues along the lines of if it walks like a duck, quacks like a duck… – it’s easier than that: where s383(b), Employment Act 2002 says
(3)If in the case of proceedings to which this section applies—
(b)when the proceedings were begun…
means “when the proceedings were begun” [lodging of the employment tribunal claim starting said proceedings] – there is no need for further analysis.
In the case in question – Govdata Ltd v Denton – the appellant, Govdata Ltd, argued (or perhaps just read the subsection out and left it at that, so obvious the appeal that no argument should have been necessary!) that the legislation is as clear as can be – the interpretation of “when the proceedings were begun…” means what it says.
The EAT found no reason to disagree, confirming that when Parliament put the phrase “when the proceedings were begun…” that had a specific purpose: that even if late, eventual compliance with s1 Employment Rights Act 1996 [the need to provide a Statement of Particulars], cannot lead to any increase to an award provided under s38, Employment Act 2002 if s1 is complied with before the employment tribunal proceedings were commenced.
Is There Anything Less Subtle to be Read into the Judgment?
ACAS Early Conciliation
While not specifically addressing the issue (it wasn’t relevant in the case), the judgment seems to confirm that any remedy for non-compliance with s1 ERA before proceedings begin, even if late (these documents are meant to be issued within two months of employment commencing; one month for notice of changes – and that could include something as simple as a pay rise!), can be remedied before employment tribunal proceedings are brought.
As a potential claimant would normally have to contact ACAS before presenting a claim to a tribunal to “institute relevant proceedings” [s18A Enterprise and Regulatory Reform Act 2013], it again appears clear that employers could at least reduce any risk of awards if this option was exercised in necessary cases.
Advice to Employers
If you get contacted by ACAS about a potential tribunal claim, issue at least a bare-bones minimum statement of particulars before any potential employment tribunal claim is presented – you possibly have a month, while the Early-Conciliation continues. (And maybe get advice about defending the tribunal claim, and ensuring you are compliant with s1 for the future.)