Full and in-depth structure and notes on s38 claims. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on s38 claims . Contains extensive but easily comprehensible d...
Whenever the ET is brought a claim and it is successful, the ET must consider whether the employer
has complied with their duty under s1 EA (s38).
However, the claim the employee brings must fall within sch 5 EA for the ET to consider it.
Does it fall under Sch 5?
Claims under schedule 5 EA 2020:
Section 145A of the Trade Union and Labour Relations (Consolidation) Act 1992
(inducements relating to union membership or activities) Section 145B of that Act
(inducements relating to collective bargaining) Section 146 of that Act (detriment
in relation to union membership and activities)
Paragraph 156 of Schedule A1 to that Act (detriment in relation to union
recognition rights)
Section 23 of the Employment Rights Act 1996 (c. 18) (unauthorised deductions
and payments)
Section 48 of that Act (detriment in employment)
Section 111 of that Act (unfair dismissal)
Section 163 of that Act (redundancy payments)
Section 24 of National Minimum Wage Act 1998 (c. 39) (detriment in relation to
national minimum wage)
The Employment Tribunal Extension of Jurisdiction (England and Wales) Order
1994 (S.I. 1994/1623) (breach of employment contract and termination)
The Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (S.I.
1994/1624) (corresponding provision for Scotland)
Regulation 30 of the Working Time Regulations 1998 (S.I. 1998/1833) (breach of
regulations)
Regulation 32 of the Transnational Information and Consultation of Employees
Regulations 1999 (S.I. 1999/3323) (detriment relating to European Works
Councils)
Regulation 45 of the European Public Limited-Liability Company Regulations 2004
( S.I. 2004/2326 ) (detriment in employment)
Regulation 33 of the Information and Consultation of Employees Regulations 2004
( S.I. 2004/3426 ) (detriment in employment)
Paragraph 8 of the Schedule to the Occupational and Personal Pension Schemes
(Consultation by Employers and Miscellaneous Amendment) Regulations 2006
( S.I. 2006/349 ) (detriment in employment)
Regulation 34 of the European Cooperative Society (Involvement of Employees)
Regulations 2006 (detriment in relation to involvement in a European Cooperative
Society)
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, Sch5/s38 and failure to comply with s1 EA 2000
Regulation 17 of the Cross-border Railways Services (Working Time) Regulations
2008 (breach of regulations)
Sections 120 and 127 of the Equality Act 2010 (discrimination etc in work cases)”.
Which particulars were not given in the employment contract / written statement?
See below.
Particulars under s1 ERA 1996:
Name of employee and employer
Names of the employer and employee s1(3)(a)
Date of employment
Date employment began s1(3)(b)
When a statement is given to an employee; the date the employee’s period of S1(3)(c)
continuous employment began
Renumeration
The rate of renumeration & calculation of renumeration S1(4)(a)
The period of payments (monthly, weekly and on what date and how – bank transfer…) S1(4)(b)
Working hours & days / variation to days & hours / sick pay & other leave
Any terms & conditions relating to: normal working hours S1(4)(c)(i)
Any terms & conditions relating to: the days of the week ‘x’ is required to work S1(4)(c)(ii)
Any terms & conditions relating to: whether or not such hours or days and variable and S1(4)(c)(iii)
how they will vary
Any terms & conditions relating to: entitlement to holiday & holiday pay & other holiday S1(4)(d)(i)
terms
Any terms & conditions relating to: inability to work due to sickness / injury – including S1(4)(d)(ii)
sick pay
Any terms & conditions relating to: other paid leave (maternity) S1(4)(d)
(iia)
Pensions and other benefits
Any terms & conditions relating to: pensions and pension schemes S1(4)(d)(iii)
Any terms & conditions relating to: any other benefits the employer may provide S1(4)(da)
Notice
The length of notice the employee is obliged to give and entitled to receive on S1(4)(e)
termination of their contract
Job / title description
The job title or brief description of the work ‘x’ is employed to do S1(4)(f)
Fixed-term contracts
Fixed-term contracts/employment: the period of the fixed-term with the date it ends S1(4)(g)
Fixed term: any probatory period and conditions and duration S1(4)(ga)
Place of work / outside UK
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