Scott-Davies v Redgate Medical Services

EAT: Judge McMullen QC: 11 August 2006

The claimant, who had been summarily dismissed by his employer after six months' employment, complained to the employment tribunal that he would not have been dismissed had his employer not failed, in breach of section 1 of the Employment Rights Act 1996, to provide him with written particulars of his contract of employment, including provisions for complying with statutory grievance and disciplinary procedures under the Employment Act 2002, and that as a result he had lost his employment without any remedy for unfair dismissal. The employment tribunal held that it had no jurisdiction to hear a free-standing complaint of failure by an employer to follow the statutory procedures.

The claimant appealed.

JUDGE McMULLEN QC held:
The remedy for an employee who, in breach of section 1of the Employment Rights Act 1996, had not been given a statement of particulars of employment was to seek under section 11 a determination of those particulars by an employment tribunal, but that was not one of the rights to which the statutory procedures under the Employment Act 2002 applied. There was no statutory provision conferring jurisdiction on employment tribunals to consider free-standing complaints that there had been a failure to comply with a statutory procedure, and such a complaint could be invoked only as part of an otherwise valid claim. Accordingly, where, as in the present case, there was no claim to which the statutory procedures applied, there being no statutory right to make a complaint of ordinary unfair dismissal by a person with less than one year's service, there was no jurisdiction to which such a complaint could be linked, and, similarly, section 38 of the 2002 Act did not create the jurisdiction to complain to a tribunal of a failure to give a statement of employment particulars when there was no relevant substantive right.

The appeal was dismissed.

Appearances: The claimant in person; Bruce Gardiner (Porter Dodson, Yeovil) for the employer.