Mr B Alexander v Secretary of State for Education: 1305546/2019
| Jurisdiction | England & Wales |
| Judgment Date | 24 June 2021 |
| Citation | 1305546/2019 |
| Court | Employment Tribunal |
| Published date | 07 July 2021 |
| Subject Matter | Contract of Employment |
Case Number 1305546/2019
1
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Mr B Alexander Secretary of State
for Education
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
HELD AT Birmingham ON 8 – 11 June 2021
EMPLOYMENT JUDGE GASKELL
Representation
For the Claimant: Mr D Bunting (Counsel)
For Respondent: Ms C McCann (Counsel)
JUDGMENT
The judgment of the tribunal is that:
1 Pursuant to Section 12(2)(a) of the Employment Rights Act 1996, upon the
claimant’s reference to the tribunal pursuant to Section 11(2) of that Act,
the particulars of employment provided to the claimant by the respondent
on 29 March 2019 are confirmed.
2 Pursuant to Section 24 of the Employment Rights Act 1996, the claimant’s
complaint pursuant to Section 23 of that Act is not well-founded and is
dismissed.
REASONS
(The Judgment with Full Reasons was delivered orally on 11 June 2021. The
claimant requested the provision of written Reasons, which are set out below.)
Introduction
1 The claimant in this case is Mr Brayden Alexander who has been
employed by the respondent, the Secretary of State for Education, since 1 April
2019. The claimant’s employment is continuing. The claimant’s period of
continuous service commenced on 9 September 2015 when he was appointed
as a Transition Manager with BAE Systems Applied Intelligence Ltd. On 1 April
2018, the claimant’s employment transferred to BAE Systems Plc; this was a
relevant transfer for the purposes of the Transfer of Undertakings Protection of
Employment Regulations 2006 (TUPE), Henceforth, I will refer to both of the
above named companies simply as BAE. All 1 April 2019 the claimant’s
Case Number 1305546/2019
2
employment then transferred to the respondent and again this was a relevant
transfer for TUPE.
2 The claimant is concerned that, following the transfer of his employment to
the respondent, certain elements of his contract are not being honoured. On 27
June 2019, the claimant presented his claim form seeking a declaration as to the
terms and conditions of employment and, pursuant to the terms and conditions
contended for, a claim for unlawful deduction from wages and for an award
making good the deductions.
3 The employment tribunal does not have jurisdiction to enforce an
employment contract. The contractual jurisdiction of the tribunal is limited to that
given in the Employment Tribunal Extension of Jurisdiction (England and Wales)
Order 1994; and, significantly the tribunal has no contractual jurisdiction whilst
the employment is continuing.
4 At a Closed Preliminary Hearing conducted by Employment Judge
Woffenden on 29 June 2020, and following argument during the course of this
hearing, the nature of the claims have been clarified (and possibly amended by
consent) to the following: -
(a) The claimant makes a reference pursuant to Section 11(2) Employment
Rights Act 1996 (ERA) to the effect that the statement of employment
particulars provided to him by the respondent on 29 March 2019
inaccurate
(b) Pursuant to Section 12(2) ERA the claimant seeks the amendment to or
substitution of the particulars given.
(c) Pursuant to Section 24 ERA, on the basis of such an amendment it is the
claimant’s case that there has been an unlawful deduction from wages
contrary to Section 13 ERA. He seeks a declaration to that effect; but, at
this stage, does not seek an award.
5 The claimant is seeking a declaration from the tribunal not merely
amending or substituting the particulars given by the respondent on 29 March
2019 but also declaring that these particulars have contractual force. The
respondent’s position is that, as a statement given pursuant to S1 or S4 ERA can
(and often should) include both contractual and non-contractual provisions, it is
outside the jurisdiction of the tribunal to declare which of the particulars given are
contractual in nature and which are not. This would amount to the tribunal
interpreting the terms of the contract. Accordingly, Ms McCann’s case is that
even if the tribunal were to grant the remedy sought by the claimant by amending
or substituting the particulars this may not be sufficient to achieve the relief he
seeks. It may be necessary for him to go to the civil courts to enforce his
contract. This is something to which I will return if necessary.
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