The Claimant started working for the Respondent, but was not given a written statement of employment particulars until 6 months later, contrary to s 1 Employment Rights Act 1996 ("ERA 1996"). When the Claimant's employment terminated, he successfully claimed arrears of pay, holiday pay and other payments; he also succeeded in his application to the ET to increase the award under s 38(3) of the 2002 Act. The Respondent appealed against the increase in the award, on the grounds that it had complied with its duty under s 1 ERA 1996 prior to the commencement of the proceedings; the condition in s 38(3)(b) was therefore not met, and the Respondent was no longer in breach of its duty under s 1 ERA 1996.

The EAT held that the ET had erred in law, since the Respondent had complied with its duty under s 1 ERA 1996 before the proceedings were begun. Accordingly, the appeal would be allowed and the ET's judgment in respect of the increased award would be set aside.