Does a tribunal need to consider making a compensation uplift order where the Respondent is not on notice of such a claim?
No, held the EAT in Levy v 34 & Co Ltd.
Mr Levy brought a claim for unlawful deductions in the sum of £148.62, following his employment of, importantly, just under a month. He only mentioned a claim for an uplift pursuant to s38 Employment Act 2002, for a failure to provide sufficient written particulars, in his schedule of loss. This was not provided to the Respondent, who did not appear before the tribunal.
Having determined (incorrectly) that he was employed for a month, the Claimant appealed the failure by the tribunal to make an uplift, given the mandatory language of s38(3) which provides that in applicable cases the tribunal must increase the award and make an uplift.
The EAT held that the tribunal was not bound to consider or make an uplift. It is for the Claimant to set out to the Respondent the claim(s) they make. The tribunal in this case could therefore have only scrutinised the facts or given notice to Respondent. Had either been done, on these facts, no uplift could have been made.
Thanks to Matthew Withers of 1 COR Chambers for preparing this case summary.
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