Employment Protection (Consolidation) Act 1978

1978 c. 44

An Act to consolidate certain enactments relating to rights of employees arising out of their employment; and certain enactments relating to the insolvency of employers; to industrial tribunals; to recoupment of certain benefits; to conciliation officers; and to the Employment Appeal Tribunal.

[31st July 1978]C17 C18 C19 C20 C21 C22 C23

Annotations:

Modifications etc. (not altering text)

C17

Act modified by Hops Marketing Act 1982 (c.5, SIF 2:10), s. 2(7), Local Government Finance Act 1982 (c.32, SIF 81:1), Sch. 3 para. 8(3), (1.4.1984) Health and Social Services and Social Security Adjudications Act 1983 (c.41, SIF 113:3), Sch. 3 para. 23, National Audit Act 1983 (c.44, SIF 99:1), Sch. 2 para. 2(3), National Heritage Act 1983 (c.47, SIF 78), Sch. 1 paras. 5(5), 15(5), 25(5), 35(5), Sch. 2 para. 2(5), Sch. 3 para. 5(5), S.I. 1985/1846, reg. 5(5), S.I. 1986/399, arts. 5(8), 6(3), S.I. 1986/151, regs. 2, 3(3)(4), S.I. 1987/406, reg. 2(2), Education Reform Act 1988 (c. 40, SIF 41:1), ss. 178(2)(a), 231(7), 235(6); Dock Work Act 1989 (c. 13, SIF 43:1), s. 6(3); Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 137(4), Sch. 10 para.15; Act modified (S.) by National Heritage (Scotland) Act 1985 (c. 16, SIF 78), ss. 1, 10, Sch. 1 Pt. I paras. 5(5), 16(5); Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2), s. 1, Sch. 1 para. 10(1); Enterprise and New Towns (Scotland) Act 1990 (c. 35, SIF 64), s. 1, Sch. 1 para. 17(1); Act modified (E.W.S.) by Health and Medicines Act 1988 (c. 49, SIF 113:2), ss. 18, 26(7); Housing Act 1988 (c. 50, SIF 61), s. 46(2), Sch. 5 para. 10(1); Act modified (E.W.) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 20(6)

C18

Power to modify Act (E.W.) conferred by Local Government Finance Act 1988 (c. 41, SIF 81:1), s. 136, Sch. 11 para. 6(4) and (E.W.) (10.12.1992) by National Health Service and Community Care Act 1990 (c. 19), s. 49(3)(b); S.I. 1992/2975, art. 2(1)(a).

C19

Act applied with modifications by S.I. 1989/1139, arts. 3(6), 4(8), Sch. Pt. III; S.I. 1989/1139, art. 4(4), Sch. para. 13; S.I. 1989/1139, art. 4(6), Sch. paras. 12, 13

C20

Act excluded by S.I. 1989/901, art. 6(1)

Act restricted (retrospectively for specified purposes and otherwise 3.11.1994) by 1994 c. 33, ss. 126(1)(2)(a)(4), 172(4)

Act excluded (3.11.1994) by 1994 c. 33, ss. 127(8), 172(4)

Act amended (1.4.1996) by S.I. 1996/593, reg. 2, Sch. 1

C21

Act applied (S.) (27.11.1991) by Natural Heritage (Scotland) Act 1991 (c. 28, SIF 46:1), s. 14, Sch. 4 para. 4; S.I. 1991/2633, art. 3, Sch.

C22

Act modified (16.3.1992) by Offshore Safety (Protection Against Victimisation) Act 1992 (c. 24), s. 1(1)(3).

C23

Act: by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 281(5), 282(2), 302 it is provided (16.10.1992) that any provision modifying or supplementing s. 151 or Sch. 13 of this Act shall apply for the purposes of that s. 281.

F3Part I Employment Particulars

Annotations:

Amendments (Textual)

Ss. 1-6, Part I heading and cross heading substituted (30.11.1993) by 1993 c. 19, ss. 26, 50, Sch.4, Sch. 9 para. 3; S.I. 1993/2503, art. 2(2), Sch.2.

F2Written particulars of employment

Annotations:

Amendments (Textual)

Ss. 1-6, Part I heading and cross heading substituted (30.11.1993) by 1993 c. 19, ss. 26, 50, Sch.4, Sch. 9 para. 3; S.I. 1993/2503, art. 2(2), Sch.2.

F46 C24 C251 Employer’s duty to give statement of employment particulars.

1

Not later than two months after the beginning of an employee’s employment with an employer, the employer shall give to the employee a written statement which may, subject to subsection (3) of section 2, be given in instalments before the end of that period.

2

The statement shall contain particulars of—

a

the names of the employer and employee,

b

the date when the employment began, and

c

the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

3

The statement shall also contain particulars, as at a specified date not more than seven days before the statement or instalment of the statement containing them is given, of—

a

the scale or rate of remuneration or the method of calculating remuneration,

b

the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),

c

any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

d

any terms and conditions relating to any of the following—

i

entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

ii

incapacity for work due to sickness or injury, including any provision for sick pay, and

iii

pensions and pension schemes,

e

the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,

f

the title of the job which the employee is employed to do or a brief description of the work for which the employee is employed,

g

where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,

h

either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,

j

any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and

k

where the employee is required to work outside the United Kingdom for a period of more than one month—

i

the period for which he is to work outside the United Kingdom,

ii

the currency in which remuneration is to be paid while he is working outside the United Kingdom,

iii

any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and

iv

any terms and conditions relating to his return to the United Kingdom.

4

Subsection (3)(d)(iii) shall not apply to the employees of any body or authority if—

a

the employees’ pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act of Parliament, and

b

the body or authority are required by any such provision to give to new employees information concerning their pension rights or the determination of questions affecting their pension rights.

F47 C262 Section 1: supplementary.

1

If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (3) of that section, or under any of the other paragraphs of subsection (2) or (3) of that section, that fact shall be stated.

2

A statement under section 1—

a

may refer the employee to the provisions of some other document which—

i

the employee has reasonable opportunities of reading in the course of his employment, or

ii

d

paragraph (h),

shall be included in a single document (in this Part referred to as the “principal statement”).

5

Where before the end of the period of two months after the beginning of his employment an employee is to begin to work outside the United Kingdom for a period of more than one month, the statement under section 1 shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work.

6

A statement shall be given to a person under section 1 notwithstanding that his employment ends before the end of the period within which the statement is required to be given.

F482A Particulars of disciplinary procedures not required where less than 20 employees.

1

The note which, by virtue of subsection (4) of section 1, is required to be included in a statement given to an employee under that section need not comply with the following provisions of that subsection, namely—

a

paragraph (a),

b

in paragraph (b), sub-paragraph (i) and the words following sub-paragraph (ii) so far as relating to sub-paragraph (i), and

c

paragraph (c),

if on the date when the employee’s employment began the relevant number of employees was less than twenty.

2

In subsection (1) “the relevant number of employees”, in relation to an employee, means the number of employees employed by his employer added to the number of employees employed by any associated employer.

F49 C273 Statement to include note about disciplinary procedures.

1

A statement under section 1 shall include a note—

a

specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document which—

i

the employee has reasonable opportunities of reading in the course of his employment, or

ii

is made reasonably accessible to him in some other way,

and which specifies such rules,

b

specifying, by description or otherwise—

i

a person to whom the employee can apply if he is dissatisfied with any disciplinary decision relating to him, and

ii

a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment,

and the manner in which any such application should be made,

c

where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document which—

i

the employee has reasonable opportunities of reading in the course of his employment, or

ii

is made reasonably accessible to him in some other way,

and which explains them, and

d

stating whether a contracting-out certificate is in force for the employment.

2

Subsection (1)(a) to (c) shall not apply to rules, disciplinary decisions, grievances or procedures relating to health or safety at work.

3

The note need not comply with the following provisions of subsection (1)—

a

paragraph (a),

b

in paragraph (b), sub-paragraph (i) and the words following sub-paragraph (ii) so far as relating to sub-paragraph (i), and

c

paragraph (c),

if on the date when the employee’s employment began the relevant number of employees was less than twenty.

4

In subsection (3) “the relevant number of employees”, in relation to an employee, means the number of employees employed by his employer added to the number of employees employed by any associated employer.

F50 C28 C29 C304 Employer’s duty to give statement of changes.

C311

If, after the date to which a statement given under section 1 relates, or, where no such statement is given, after the end of the period within which a statement under section 1 is required to be given, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall at the earliest opportunity and, in any event, not later than—

a

one month after the change, or

b

where the change results from the employee being required to work outside the United Kingdom for a period of more than one month, the time when he leaves the United Kingdom in order to begin so to work, if that is earlier,

give to the employee a written statement containing particulars of the change.

2

In a case where the statement under section 1 is given in instalments, subsection (1) applies—

is made reasonably accessible to him in some other way.

C325

Where after an employer has given to an employee a statement under section 1—

a

either—

i

the name of the employer (whether an individual or a body corporate or partnership) is changed without any change in the identity of the employer, or

ii

the identity of the employer is changed in circumstances in which the continuity of the employee’s period of employment is not broken, and

b

the change does not involve any change in any of the matters (other than the names of the parties) particulars of which are required by sections 1 to 3 to be included in the statement,

the person who immediately after the change is the employer shall not be required to give to the employee a statement under section 1 but the change shall be treated as a change falling within subsection (1) of this section.

6

A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (5)(a)(ii) shall specify the date on which the employee’s period of continuous employment began.

F515 Exclusion of sections 1 to 4 in case of certain employees.

1

Sections 1 to 4 shall not apply to an employee if—

a

his employment continues for less than one month, or

b

he is employed under a contract which normally involves employment for less than eight hours weekly.

2

Sections 1 to 4 shall apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided for by subsection (1)(b) and sections 141 and 144, and under section 149, as if his employment with his employer terminated or began at that time.

3

The fact that section 1 is directed by subsection (2) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that subsection shall not affect the obligation under section 1(2)(b) to specify the date on which his employment actually began.

5AF52 Employees becoming or ceasing to be excluded from ss. 1 to 4.

1

Sections 1 to 4 shall apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided for by section 5, 141, 144, 145 or 146(4) to (7), or under section 149, as if his employment with his employer terminated or began at that time.

2

Subsection (1) of section 1 shall apply to an employee who ceases to come within the exception provided by section 5 with the substitution for the words “thirteen weeks” of the words “one month”.

3

The fact that section 1 is directed to apply to an employee as if his employment began on his ceasing to come within one of the exceptions referred to in subsection (1) shall not affect the obligation under subsection (2)(b) of that section to specify the date on which his employment actually began.

F53 C336 Power of Secretary of State to require particulars of further matters.

The Secretary of State may by order provide that section 1 shall have effect as if particulars of such further matters as may be specified in the order were included in the particulars required by that section; and, for that purpose, the order may include such provisions amending that section as appear to the Secretary of State to be expedient.

F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Itemised pay statements

8 Right to itemised pay statement.

Every employee shall have the right to be given by his employer at or before the time at which any payment of wages or salary is made to him an itemised pay statement, in writing, containing the following particulars, that is to say,—

a

the gross amount of the wages or salary;

b

the amounts of any variable and, subject to section 9, any fixed deductions from that gross amount and the purposes for which they are made;

c

the net amount of wages or salary payable; and

d

where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

9 Standing statement of fixed deductions.

1

A pay statement given in accordance with section 8 need not contain separate particulars of a fixed deduction if it contains instead an aggregate amount of fixed deductions, including that deduction, and the employer has given to the employee, at or before the time at which that pay statement is given, a standing statement of fixed deductions, in writing, which contains the following particulars of each deduction comprised in that aggregate amount, that is to say,—

a

the amount of the deduction;

b

the intervals at which the deduction is to be made; and

c

the purpose for which it is made,

and which, in accordance with subsection (4), is effective at the date on which the pay statement is given.

2

A standing statement of fixed deductions may be amended, whether by addition of a new deduction or by a change in the particulars or cancellation of an existing deduction, by notice in writing, containing particulars of the amendment, given by the employer to the employee.

3

An employer who has given to an employee a standing statement of fixed deductions shall, within the period of twelve months beginning with the date on which the first standing statement was given and at intervals of not more than twelve months thereafter, re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (2).

4

A standing statement of fixed deductions shall become effective, for the purposes of subsection (1), on the date on which it is given to the employee and shall cease to have effect on the expiration of the period of twelve months beginning with that date, or, where it is re-issued in accordance with subsection (3), the expiration of the period of twelve months beginning with the date on which it was last re-issued.

10 Power to amend ss. 8 and 9.

The Secretary of State may by order—

a

vary the provisions of section 8 and 9 as to the particulars which must be included in a pay statement or a standing statement of fixed deductions by adding items to or removing items from the particulars listed in those sections or by amending any such particulars; and

b

vary the provisions of section 9(3) and (4) so as to shorten or extend the periods of twelve months referred to in those subsections, or those periods as varied from time to time under this section.

Enforcement of rights under Part I

11 References to industrial tribunals.

1

Where an employer does not give an employee a statement as required by section 1 or 4(1) or 8, F54(that is to say, either because he gives him no statement or because the statement he gives does not comply with those requirements) the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the relevant section.

2

Where—

a

a statement purporting to be a statement under section 1 or 4(1), or

b

a pay statement, or a standing statement of fixed deductions, purporting to comply with section 8 or 9(1),

has been given to an employee, and a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part, either the employer or the employee may require that question to be referred to and determined by an industrial tribunal.

F553

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

In this section, a question as to the particulars which ought to have been included—

a

in a pay statement, or in a standing statement of fixed deductions, does not include a question solely as to the accuracy of an amount stated in any such particulars;

b

in F56the note required by section 3 to be included in the statement under section 1 does not include any question whether the employment is, has been or will be contracted-out employment for the purposes of Part III of the M4Social Security Pensions Act 1975.

5

Where, on a reference under subsection (1), an industrial tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4(1) the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.

6

On determining a reference under subsection (2)(a), an industrial tribunal may either confirm the particulars as included or referred to in the statement given by the employer, or may amend those particulars, or may substitute other particulars for them, as the tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the tribunal.

F577

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

Where on a reference under this section an industrial tribunal finds that an employer has failed to give an employee any pay statement in accordance with section 8 or that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that section or section 9(1)—

a

the tribunal shall make a declaration to that effect; and

b

where the tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

In this subsection “unnotified deduction” means a deduction made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of that deduction required by section 8 or 9(1).

9

An industrial tribunal shall not entertain a reference under this section in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made

F58a

before the end of the period of three months beginning with the date on which the employment ceased F58or—

b

within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months

Part II Rights Arising in Course of Employment

Guarantee payments

12 Right to guarantee payment. C34

1

Where an employee throughout a day during any part of which he would normally be required to work in accordance with his contract of employment is not provided with work by his employer by reason of—

a

a diminution in the requirements of the employer’s business for work of the kind which the employee is employed to do, or

b

any other occurrence affecting the normal working of the employer’s business in relation to work of the kind which the employee is employed to do,

he shall, subject to the following provisions of this Act, be entitled to be paid by his employer a payment, referred to in this Act as a guarantee payment, in respect of that day, and in this section and sections 13 and 16—

i

such a day is referred to as a “workless day”, and

ii

“workless period” has a corresponding meaning.

2

b

he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

14 Calculation of guarantee payment.

1

Subject to the limits set by section 15, the amount of a guarantee payment payable to an employee in respect of any day shall be the sum produced by multiplying the number of normal working hours on that day by the guaranteed hourly rate, and, accordingly, no guarantee payment shall be payable to an employee in whose case there are no normal working hours on the day in question.

2

Subject to subsection (3), the guaranteed hourly rate in relation to an employee shall be the amount of one week’s pay divided by—

a

the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day in respect of which the guarantee payment is payable; or

b

where the number of such normal working hours differs from week to week or over a longer period, the average number of such hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is payable; or

c

in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, a number which fairly represents the number of normal working hours in a week having regard to such of the following considerations as are appropriate in the circumstances, that is to say,—

i

the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract;

ii

the average number of such hours of other employees engaged in relevant comparable employment with the same employer.

3

If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsection (2) shall have effect as if for the reference to the day in respect of which the guarantee payment is payable there was substituted a reference to the last day on which the original contract was in force.

15 Limits on amount of and entitlement to guarantee payment.

1

The amount of a guarantee payment payable to an employee in respect of any day shall not exceed F62£14.10.

2

An employee shall not be entitled to guarantee payments in respect of more than the specified number of days in F63any period of three months.

3

The specified number of days for the purposes of subsection (2) shall be, subject to subsection (4),—

a

the number of days, not exceeding five, on which the employee normally works in a week under the contract of employment in force on the day in respect of which the guarantee payment is claimed; or

b

where that number of days varies from week to week or over a longer period, the average number of such days, not exceeding five, calculated by dividing by twelve the total number of such days during the period of twelve weeks ending with the last complete week before the day in respect of which the guarantee payment is claimed, and rounding up the resulting figure to the next whole number; or

c

in a case falling within paragraph (b) but where the employee has not been employed for a sufficient period to enable the calculation to be made under that paragraph, a number which fairly represents the number of the employee’s normal working days in a week, not exceeding five, having regard to such of the following considerations as are appropriate in the circumstances, that is to say,—

i

the average number of normal working days in a week which the employee could expect in accordance with the terms of his contract;

ii

the average number of such days of other employees engaged in relevant comparable employment with the same employer.

4

If in any case an employee’s contract has been varied, or a new contract has been entered into, in connection with a period of short-time working, subsection (3) shall have effect as if for the references to the day in respect of which the guarantee payment is claimed there were substituted references to the last day on which the original contract was in force.

5

The Secretary of State may vary any of the limits referred to in this section, and may in particular vary the F64length of the period referred to in subsection (2), after a review under section 148, by order made in accordance with that section.

16 Supplementary provisions relating to guarantee payments.

1

Subject to subsection (2), a right to a guarantee payment shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as “contractual remuneration”).

2

Any contractual remuneration paid to an employee in respect of a workless day shall go towards discharging any liability of the employer to pay a guarantee payment in respect of that day, and conversely any guarantee payment paid in respect of a day shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that day.

3

For the purposes of subsection (2), contractual remuneration shall be treated as paid in respect of a workless day—

a

where it is expressed to be calculated or payable by reference to that day or any part of that day, to the extent that it is so expressed; and

b

in any other case, to the extent that it represents guaranteed remuneration, rather than remuneration for work actually done, and is referable to that day when apportioned rateably between that day and any other workless period falling within the period in respect of which the remuneration is paid.

4

The Secretary of State may by order provide that in relation to any description of employees the provisions of sections 12(2), 14 and 15(3) (as originally enacted or as varied under section 15(5)) and of subsections (1) to (3), and, so far as they apply for the purposes of those provisions, the provisions of Schedule 14 shall have effect subject to such modifications and adaptations as may be prescribed by the order.

17 Complaint to industrial tribunal.

1

An employee may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of a guarantee payment to which the employee is entitled.

2

An industrial tribunal shall not entertain a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

3

Where an industrial tribunal finds a complaint under subsection (1) well-founded, the tribunal shall order the employer to pay the complainant the amount of guarantee payment which it finds is due to him.

18 Exemption orders.

1

If at any time there is in force a collective agreement, or a wages order, whereby employees to whom the agreement or order relates have a right to guaranteed remuneration and on the application of all the parties to the agreement or, as the case may be, of the F65. . .Board making the order, the appropriate Minister, having regard to the provisions of the agreement or order, is satisfied that section 12 should not apply to those employees, he may make an order under this section excluding those employees from the operation of that section.

2

In subsection (1), a wages order means an order made under any of the following provisions, that is to say—

F66a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

section 3 of the M5Agricultural Wages Act 1948;

c

section 3 of the M6Agricultural Wages (Scotland) Act 1949.

3

In subsection (1), “the appropriate Minister” means—

a

as respects a collective agreement or such an order as is referred to in subsection (2) F67. . .(c), the Secretary of State;

b

as respects such an order as is referred to in subsection (2)(b), the Minister of Agriculture, Fisheries and Food.

4

The Secretary of State shall not make an order under this section in respect of an agreement unless—

a

the agreement provides for procedures to be followed (whether by arbitration or otherwise) in cases where an employee claims that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement, and that those procedures include a right to arbitration or adjudication by an independent referee or body in cases where (by reason of an equality of votes or otherwise) a decision cannot otherwise be reached; or

b

the agreement indicates that an employee to whom the agreement relates may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of any guaranteed remuneration to which the employee is entitled under the agreement;

and where an order under this section is in force in respect of such an agreement as is described in paragraph (b) an industrial tribunal shall have jurisdiction over such a complaint as if it were a complaint falling within section 17.

5

Without prejudice to section 154(4), an order under this section may be varied or revoked by a subsequent order thereunder, whether in pursuance of an application made by all or any of the parties to the agreement in question, or, as the case may be, by the F68. . . Board which made the order in question, or without any such application.

Suspension from work on medical grounds

19 Right to remuneration on suspension on medical grounds.

1

An employee who is suspended from work by his employer on medical grounds in consequence of—

a

any requirement imposed by or under any provision of any enactment or of any instrument made under any enactment, or

b

any recommendation in any provision of a code of practice issued or approved under section 16 of the M7Health and Safety at Work etc. Act 1974,

which is a provision for the time being specified in Schedule 1 shall, subject to the following provisions of this Act, be entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks.

2

For the purposes of this section and sections 20 to 22 and 61, an employee shall be regarded as suspended from work only if, and so long as, he continues to be employed by his employer, but is not provided with work or does not perform the work he normally performed before the suspension.

3

The Secretary of State may by order add provisions to or remove provisions from the list of specified provisions in Schedule 1.

20 General exclusions from right under s. 19.

F69 C351

An employee shall not be entitled to remuneration under section 19 unless he has been continuously employed for a period of not less than one month ending with the day before that on which the suspension begins.

C352

An employee who is employed—

a

under a contract for a fixed term of three months or less, or

b

under a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months,

shall not be entitled to remuneration under section 19 unless he has been continuously employed for a period of more than three months ending with the day before that on which the suspension begins.

F703

An employee shall not be entitled to remuneration under section 19 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

F704

An employee shall not be entitled to remuneration under section 19 in respect of any period during which—

a

his employer has offered to provide him with suitable alternative work, whether or not work which the employee is under his contract, or was under the contract in force before the suspension, employed to perform, and the employee has unreasonably refused to perform that work; or

b

he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

21 Calculation of remuneration.

1

The amount of remuneration payable by an employer to an employee under section 19 shall be a week’s pay in respect of each week of the period of suspension referred to in subsection (1) of that section, and if in any week remuneration is payable in respect only of part of that week the amount of a week’s pay shall be reduced proportionately.

2

Subject to subsection (3), a right to remuneration under section 19 shall not affect any right of an employee in relation to remuneration under his contract of employment (in this section referred to as “contractual remuneration”).

3

Any contractual remuneration paid by an employer to an employee in respect of any period shall go towards discharging the employer’s liability under section 19 in respect of that period, and conversely any payment of remuneration in discharge of an employer’s liability under section 19 in respect of any period shall go towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

22 Complaint to industrial tribunal.

1

An employee may present a complaint to an industrial tribunal that his employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 19.

2

An industrial tribunal shall not entertain a complaint relating to remuneration under section 19 in respect of any day unless the complaint is presented to the tribunal before the end of the period of three months beginning with that day, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

3

Where an industrial tribunal finds a complaint under subsection (1) well-founded the tribunal shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

F97 Right not to suffer detriment in health and safety cases

Annotations:

Amendments (Textual)

F97

Ss. 22A-22C and cross heading inserted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para.1; S.I. 1993/1908, art. 2(1), Sch.1.

F9822A Right not to suffer detriment in health and safety cases.

1

An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

a

having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out, or proposed to carry out, any such activities,

b

being a representative of workers on matters of health and safety at work, or a member of a safety committee—

i

in accordance with arrangements established under or by virtue of any enactment, or

ii

by reason of being acknowledged as such by the employer,

he performed, or proposed to perform, any functions as such a representative or a member of such a committee,

c

being an employee at a place where—

i

there was no such representative or safety committee, or

ii

there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

d

in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or

e

in circumstances of danger which he reasonably believed to be serious and imminent, he took, or proposed to take, appropriate steps to protect himself or other persons from the danger.

2

For the purposes of subsection (1)(e) whether steps which an employee took, or proposed to take, were appropriate shall be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

3

An employee shall not be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have treated him as the employer did.

4

Except where an employee is dismissed in circumstances in which, by virtue of section 142, section 54 does not apply to the dismissal, this section shall not apply where the detriment in question amounts to dismissal.

F422AAF5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22AAF101 Right of employee representatives not to suffer detriment.

1

An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that, being—

a

an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 or Regulations 10 and 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, or

b

a candidate in an election in which any person elected will, on being elected, be such an employee representative,

he performed, or proposed to perform, any functions or activities as such an employee representative or candidate.

2 F99 C4122B Proceedings for contravention of section 22A.

1

An employee may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment in contravention of section 22A.

2

On such a complaint it shall be for the employer to show the ground on which any act, or deliberate failure to act, was done.

3

An industrial tribunal shall not consider a complaint under this section unless it is presented—

a

before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

b

where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable.

4

For the purposes of subsection (3)—

a

where an act extends over a period, the “date of the act” means the last day of that period, and

b

a deliberate failure to act shall be treated as done when it was decided on;

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

F100 C4222C Remedies.

1

Where the industrial tribunal finds that a complaint under section 22B is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid to the complainant in respect of the act or failure to act complained of.

2

The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss which is attributable to the act or failure which infringed his right.

3

The loss shall be taken to include—

a

any expenses reasonably incurred by the complainant in consequence of the act or failure complained of, and

b

loss of any benefit which he might reasonably be expected to have had but for that act or failure.

4

In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.

5

Where the tribunal finds that the act or failure complained of was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

Trade union membership and activities

F623. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F825. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F926. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1026A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Time off work

F1127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29 Time off for public duties.

C361

An employer shall permit an employee of his who is—

a

a justice of the peace;

b

a member of a local authority;

F71bb

a member of the Broads Authority;

c

a member of any statutory tribunal;

F72cc

a member of, in England and Wales, a board of visitors appointed under section 6(2) of the M8Prison Act 1952 or, in Scotland, a visiting committee appointed under section 19(3) of the Prisons (Scotland) Act M91989 or constituted by virtue of rules made under section 39, as read with section 8(1), of that Act;

d

a member of F73a National Health Service Trust or, in England and Wales, a Regional Health Authority F74an Area Health Authority or a District Health Authority F75or a Family Practitioner Committee or, in Scotland, a Health Board;

e

a member of, in England and Wales, the managing or governing body of an educational establishment maintained by a local education authority, or, in Scotland, a school F76. . . council or the governing body of a F77designated institution or a central institution; F78

F79ee

a member of the governing body of a grant-maintained school;

F80ef

a member of the governing body of a F81further education corporation or higher education corporation; or

F82ef

a member of a school board or of the board of management of a self-governing school;

F83eg

a member of the board of management of a college of further education; or

f

6

An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section.

30 Provisions as to industrial tribunals.

1

An industrial tribunal shall not consider F91a complaint under section 29 that an employer has failed to permit an employee to take time off unless it is presented within three months of the date when the failure occurred or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.

2

Where an industrial tribunal finds F92such a complaint well-founded, the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.

F933

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 Time off to look for work or make arrangements for training.

of an employer’s liability to pay remuneration under subsection (3); or

b

which may be ordered by a tribunal to be paid by an employer under subsection (8),

or, where both paragraphs (a) and (b) are applicable, the aggregate amount of the liabilities referred to in those paragraphs, shall not exceed, in respect of the notice period of any employee, two-fifths of week’s pay of that employee.

10

Subject to subsection (11), a right to any amount under subsection (3) or (5) shall not affect any right of an employee in relation to remuneration under the contract of employment (in this section referred to as “contractual remuneration”).

11

Any contractual remuneration paid to an employee in respect of a period when he takes time off for the purposes referred to in subsection (1) shall go towards discharging any liability of the employer to pay remuneration under subsection (3) in respect of that period, and conversely any payment of remuneration under subsection (3) in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

31AF94 Time off for ante-natal care.

C4011

Until the coming into operation of section 10 of the M15Nurses, Midwives and Health Visitors Act 1979, this section shall have effect as if for any reference to a registered midwife or registered health visitor there substituted a reference to a certified midwife.

F1331AA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31AAF96 Time off for employee representatives.

1

An employee who is—

a

b

a candidate in an election in which any person elected will, on being elected, be such an employee representative,

shall be entitled to be allowed by his employer reasonable time off during the employee’s working hours in order to perform his functions as such an employee representative or candidate.

2

Subject to subsection (3), subsections (4) to (10) of section 31A shall apply to an employee who is allowed time off in accordance with this section as they apply to an employee who is permitted to take time off in accordance with subsection (1) of that section.

3

In its application by virtue of subsection (2)—

a

subsection (4) of section 31A shall have effect as if for the reference to the period of absence there were substituted a reference to the time taken off, and

b

subsection (7) of that section shall have effect as if for the reference to the day of the appointment concerned there were substituted a reference to the day on which it is alleged that the time off should have been allowed or the day on which the time off was taken.

32F95 Meaning of “working hours".

For the purposes of sections 29 to 31A the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.

F102Part III Maternity

Annotations:

Amendments (Textual)

F102

Pt. III (ss. 33–48) repealed so far as relating to maternity pay by Social Security Act 1986 (c. 50, SIF 113:1), s. 49(3), Sch. 4 Pt. III paras. 15, 16 (with saving in S.I. 1987/406, reg. 2(i))

F14General right to maternity leave

Annotations:

Amendments (Textual)

F14

Pt. III (ss. 33-38A, 39-44) substituted for Pt. III (ss. 33-48) and ss. 45-47 added as provisions of Pt. III (10.6.1994) by 1993 c. 19, ss.23, 25, Schs.2,3; S.I. 1994/1365, art. 2, Sch.

F11934 Commencement of maternity leave period.

1

Subject to subsection (2), an employee’s maternity leave period commences with—

a

the date which, in accordance with section 36, she notifies to her employer as the date on which she intends her period of absence from work in exercise of her right to maternity leave to commence, or

b

if earlier, the first day on which she is absent from work wholly or partly because of pregnancy or childbirth after the beginning of the sixth week before the expected week of childbirth.

2

Where childbirth occurs before the day with which the employee’s maternity leave period would otherwise commence, her maternity leave period shall commence with the day on which childbirth occurs.

3

The Secretary of State may by order vary either of the provisions of subsections (1) and (2).

4

No order shall be made under subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F12035 Duration of maternity leave period.

1

Subject to subsections (2) and (3), an employee’s maternity leave period shall continue for the period of fourteen weeks from its commencement or until the birth of the child, if later.

2

Subject to subsection (3), where any requirement imposed by or under any provision of any enactment or of any instrument made under any enactment, other than a provision for the time being specified in an order made under section 45(3), prohibits her working for any period after the end of the period mentioned in subsection (1) by reason of her having recently given birth, her maternity leave period shall continue until the expiry of that later period.

3

Where an employee is dismissed after the commencement of her maternity leave period but before the time when (apart from this subsection) that period would end, the period ends at the time of the dismissal.

4

The Secretary of State may by order vary any of the provisions of this section.

5

No order shall be made under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F12136 Notice of commencement of leave.

1

An employee shall not have the right conferred by section 33 unless—

a

she notifies her employer of the date (within the restriction imposed by subsection (2)) (“the notified leave date”) on which she intends her period of absence from work in exercise of her right to maternity leave to commence—

i

not less than twenty-one days before that date, or

ii

if that is not reasonably practicable, as soon as is reasonably practicable,

b

where she is first absent from work wholly or partly because of pregnancy or childbirth before the notified leave date or before she has notified such a date and after the beginning of the sixth week before the expected week of childbirth, she notifies her employer as soon as is reasonably practicable that she is absent for that reason, or

c

2

The provisions of sections 34 to 38 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right under section 33.

F16Right to return to work

Annotations:

Amendments (Textual)

F16

Pt. III (ss. 33-38A, 39-44 and cross heading) substituted for Pt. III (ss. 33-48) and ss. 45-47 added as provisions of Pt. III (10.6.1994) by 1993 c. 19, ss. 23, 25, Schs.2, 3; S.I. 1994/1365, art. 2, Sch.

F1539. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12639 Right to return to work.

C491

An employee who—

a

has the right conferred by section 33, and

b

has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than two years,

shall also have the right to return to work at any time during the period beginning at the end of her maternity leave period and ending twenty-nine weeks after the beginning of the week in which childbirth occurs.

2

An employee’s right to return to work under this section is the right to return to work with the person who was her employer before the end of her maternity leave period, or (where appropriate) his successor, in the job in which she was then employed—

An employer may postpone an employee’s return to work until a date not more than four weeks after the notified day of return if he notifies her before that day that for specified reasons he is postponing her return until that date, and accordingly she will be entitled to return to work with him on that date.

3

Subject to subsection (4), an employee may—

a

postpone her return to work until a date not exceeding four weeks from the notified day of return, notwithstanding that that date falls after the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred; and

b

where no day of return has been notified to the employer, extend the time during which she may exercise her right to return in accordance with subsection (1), so that she returns to work not later than four weeks from the end of that period of twenty-nine weeks;

if, before the notified day of return (or the end of the period of twenty-nine weeks), she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return (or the end of that period).

4

Where an employee has once exercised a right of postponement or extension under subsection (3)(a) or (b), she shall not again be entitled to exercise a right of postponement or extension under that subsection in connection with the same return to work.

5

If an employee has notified a day of return but there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work on the notified day of return, she may instead return to work when work resumes after the interruption or as soon as reasonably practicable afterwards.

6

If—

a

no day of return has been notified,

b

there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the end of the period of twenty-nine weeks beginning with the week in which childbirth occurred, or which appears likely to have that effect, and

c

in consequence, the employee does not notify a day of return,

the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of twenty-eight days from the end of the interruption notwithstanding that she returns to work outside the period of twenty-nine weeks.

7

Where the employee has either—

a

exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

b

refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the end of the period of twenty-nine weeks there were substituted a reference to the end of the further period of four weeks or, as the case may be, of the period of twenty-eight days from the end of the interruption of work.

F13043 Supplementary.

1

Schedule 2 shall have effect for the purpose of supplementing the preceding sections in relation to an employee’s right to return to work under section 39.

2

Sections 56 and 86 also have effect for that purpose.

3

Subject to subsection (4), in sections 56 and 86 and Schedule 2 “notified day of return” has the same meaning as in section 42.

4

Where—

a

an employee’s return is postponed under subsection (2) or (3)(a) of section 42, or

b

the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5) of that section,

then, subject to subsection (4) of that section, references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or that later day.

F13144 Contractual rights.

1

An employee who has the right to return to work under section 39 and a right to return to work after absence because of pregnancy or childbirth under a contract of employment or otherwise may not exercise the two rights separately but may, in returning to work, take advantage of whichever right is, in any particular respect, the more favourable.

2

The provisions of sections 39, 41 to 43, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return to work under section 39.

General provisions

33 Rights of employee in connection with pregnancy and confinement. C43

1

An employee who is absent from work wholly or partly because of pregnancy or confinement shall, subject to the following provisions of this Act,—

a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F103

b

be entitled to return to work.

2

Schedule 2 shall have effect for the purpose of supplementing the following provisions of this Act in relation to an employee’s right to return to work.

3

An employee shall be entitled to the F104right referred to in subsection (1) whether or not a contract of employment subsists during the period of her absence but, subject to subsection (4), she shall not be so entitled unless—

a

she continues to be employed by her employer (whether or not she is at work) until immediately before the beginning of the eleventh week before the expected week of confinement;

b

she has at the beginning of that eleventh week been continuously employed for a period of not less than two years;. . . C44

c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F105

F106d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F107

iii

of the expected week of confinement or, if the confinement has occurred, the date of confinement.

F1083A

Where not earlier than forty-nine days after the beginning of the expected week of confinement (or the date of confinement) notified under subsection (3)(d) an employee is requested in accordance with subsection (3B) by her employer or a successor of his to give him written confirmation that she intends to return to work, she shall not be entitled to the right to return unless she gives that confirmation within fourteen days of receiving the request or, if that is not reasonably practicable, as soon as reasonably practicable.

3B

A request under subsection (3A) shall be made in writing and shall be accompanied by a written statement of the effect of that subsection.

4

An employee who has been dismissed by her employer for a reason falling within section 60(1)(a) or (b) and has not been re-engaged in accordance with that section, shall be entitled to the F109right referred to in subsection (1) of this section notwithstanding that she has thereby ceased to be employed before the beginning of the eleventh week before the expected week of confinement if, but for that dismissal, she would at the beginning of that eleventh week have been continuously employed for a period of not less than two years, but she shall not be entitled to the right. . . F110unless she informs her employer (in writing if he so requests), before or as soon as reasonably practicable after the dismissal takes effect, that she intends to return to work with him.

In this subsection “dismiss” and “dismissal” have the same meaning as they have for the purposes of Part V.

5

An employee shall not be entitled tothe F111right referred to in subsection (1) unless, if requested to do so by her employer, she produces for his inspection a certificate from a registered medical practitioner or a F112registered midwife stating the expected week of her confinement.

6

The Secretary of State may by order vary the periods of two years referred to in subsections (3) and (4), or those periods as varied from time to time under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by resolution of each House of Parliament.

34F113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45Right to return to work. C45

1

The right to return to work of an employee who has been absent from work wholly or partly because of pregnancy or confinement is, subject to the following provisions of this Act, a right to return to work with her original employer, or, where appropriate, his successor, at any time before the end of the period of twenty-nine weeks beginning with the week in which the date of confinement falls, in the job in which she was employed under the original contract of employment and on terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent.

2

In subsection (1) terms and conditions not less favourable than those which would have been applicable to her if she had not been so absent means, as regards seniority, pension rights and other similar rights, that the period or periods of employment prior to the employee’s absence shall be regarded as continuous with her employment following that absence F114but subject to the requirements of paragraph 5 of Schedule 5 to the Social Security Act 1989 (credit for the period of absence in certain cases).

3

If an employee is entitled to return to work in accordance with subsection (1), but it is not practicable by reason of redundancy for the employer to permit her so to return to work she shall be entitled, where there is a suitable available vacancy, to be offered alternative employment with her employer (or his successor), or an associated employer, under a new contract of employment complying with subsection (4).

4

The new contract of employment must be such that—

a

the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances; and

a

the provisions of the new contract as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had returned to work in accordance with subsection (1).

46Enforcement of rights under s. 45. C46

he remedies of an employee for infringement of either of the rights mentioned in section 45 are those conferred by or by virtue of the provisions of sections 47, 56 and 86 and Schedule 2.

47Exercise of right to return to work. C47

1

An employee shall exercise her right to return to work by F115giving written notice to the employer (who may be her original employer or a successor of that employer) at least F116twenty-one days before the day on which she proposes to return of her proposal to return on that day (in this section referred to as the notified day of return).

2

3

Subject to subsection (4), an employee may—

a

b

if before the notified day of return or, as the case may be, the expiration of the period of twenty-nine weeks she gives the employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she will be incapable of work on the notified day of return or the expiration of that period, as the case may be.

4

5

6

If no day of return has been notified and there is an interruption of work (whether due to industrial action or some other reason) which renders it unreasonable to expect the employee to return to work before the expiration of the period of twenty-nine weeks referred to in section 45(1), or which appears likely to have that effect and in consequence the employee does not notify a day of return, the employee may exercise her right to return in accordance with subsection (1) so that she returns to work at any time before the end of the period of F117twenty-eight days from the end of the interruption notwithstanding that she returns to work outside the said period of twenty-nine weeks.

7

Where the employee has either—

a

exercised the right under subsection (3)(b) to extend the period during which she may exercise her right to return; or

b

refrained from notifying the day of return in the circumstances described in subsection (6),

the other of those subsections shall apply as if for the reference to the expiration of the period of twenty-nine weeks there were substituted a reference to the expiration of the further period of four weeks or, as the case may be, of the period of F118twenty-eight days from the end of the interruption of work.

8

Where—

a

n employee’s return is postponed under subsection (2) or (3)(a), or

b

the employee returns to work on a day later than the notified day of return in the circumstances described in subsection (5),

then, subject to subsection (4), references in those subsections and in sections 56 and 86 and Schedule 2 to the notified day of return shall be construed as references to the day to which the return is postponed or, as the case may be, that later day.

48C48Contractual right to return to work.

1

An employee who has a right both under this Act and under a contract of employment, or otherwise, to return to work, may not exercise the two rights separately but may in returning to work take advantage of whichever right is, in any particular respect, the more favourable.

2

The provisions of sections 45, 46, 47, 56 and 86 and paragraphs 1 to 4 and 6 of Schedule 2 shall apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in subsection (1) as they apply to the exercise of the right to return conferred solely by this Part.

C1Part IV Termination of Employment

Annotations:

Modifications etc. (not altering text)

Pt. IV modified (3.4.1995) by 1994 c. 19, s. 44(1)(a) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 7, Sch. 3

49 Rights of employer and employee to a minimum period of notice. C50

C511

The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for F132one month or more—

a

shall be not less than one week’s notice if his period of continuous employment is less than two years;

b

shall be not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years; and

c

shall be not less than twelve weeks’ notice if his period of continuous employment is twelve years or more.

C512

The notice required to be given by an employee who has been continuously employed for F132one month or more to terminate his contract of employment shall be not less than one week.

C513

Any provision for shorter notice in any contract of employment with a person who has been continuously employed for [F132one month] or more shall have effect subject to the foregoing subsections, but this section shall not be taken to prevent either party from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.

C514

Any contract of employment of a person who has been continuously employed for F133three months or more which is a contract for a term certain of F133one month or less shall have effect as if it were for an indefinite period and, accordingly, subsections (1) and (2) shall apply to the contract.

F134 C514A

Subsections (1) and (2) do not apply to a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months unless the employee has been continuously employed for a period of more than three months.

5

It is hereby declared that this section does not affect any right of either party to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the passing of this Act.

6

The definition of week given by section 153(1) does not apply for the purposes of this section.

50 Rights of employee in period of notice. C52

1

If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for F135one month or more, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(1).

2

If an employee who has been continuously employed for F135one month or more gives notice to terminate his contract of employment, the provisions of Schedule 3 shall have effect as respects the liability of the employer for the period of notice required by section 49(2).

3

This section shall not apply in relation to a notice given by the employer or the employee if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 49(1).

51 Measure of damages in proceedings against employers. C53

If an employer fails to give the notice required by section 49, the rights conferred by section 50 (with Schedule 3) shall be taken into account in assessing his liability for breach of the contract.

52 Statutory contracts.

Sections 49 and 50 shall apply in relation to a contract all or any of the terms of which are terms which take effect by virtue of any provision contained in or having effect under an Act of Parliament, whether public or local, as they apply in relation to any other contract; and the reference in this section to an Act of Parliament includes, subject to any express provision to the contrary, an Act passed after this Act.

53 Written statement of reasons for dismissal. C54

1

An employee shall be entitled—

a

if he is given by his employer notice of termination of his contract of employment;

b

if his contract of employment is terminated by his employer without notice; or

c

if, where he is employed under a contract for a fixed term, that term expires without being renewed under the same contract,

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal.

C552

An employee shall not be entitled to a written statement under subsection (1) unless on the effective date of termination he has been, or will have been, continuously employed for a period of F136F137not less than two years ending with that date.

3

A written statement provided under this section shall be admissible in evidence in any proceedings.

4

A complaint may be presented to an industrial tribunal by an employee F138. . . on the ground that the employer unreasonably F139failed to provide a written statement under this section or that the particulars of reasons given in purported compliance with F139this section are inadequate or untrue, and if the tribunal finds the complaint well-founded—

a

it may make a declaration as to what it finds the employer’s reasons were for dismissing the employee; and

b

it shall make an award that the employer pay to the employee a sum equal to the amount of two weeks’ pay.

5

An industrial tribunal shall not entertain a complaint under this section relating to the reasons for a dismissal unless it is presented to the tribunal at such a time that the tribunal would, in accordance with section 67(2) or (4), entertain a complaint of unfair dismissal in respect of that dismissal presented at the same time.

C2 C3 C4Part V Unfair Dismissal

Annotations:

Modifications etc. (not altering text)

Pt. V modified by S.I. 1981/1794, regs. 8(1)(4), 13

Pt. V (ss. 54-80) modified (3.4.1995) by 1994 c. 19, s. 44(1)(a) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 7, Sch. 3

Pt. V modified (E.W.) (ss. 54-80) (26.8.1994) by 1994 c. 20, s. 4, Sch. 4 para. 7(1)(3); S.I. 1994/1841, art. 2

Pt. V modified (ss. 54-80) (prosp.) by 1995 c. 26, ss. 46(5)(6), 180(1) (which c. 46 was repealed (22.8.1996) by 1996 c. 18, ss. 242, 243, Sch. 3 Pt. I (with ss. 191-195, 202))

Pt. V (ss. 54–80) modified by S.I. 1989/901, arts. 3, 4(b), Sch.

Pt. V (ss. 54-80) modified (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss.152(1),153, 302.

Pt. V (ss. 54-80) excluded (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 167(1), 302.

Pt. V: by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 167(1)(2)(3), 302 it is provided (16.10.1992) that Pt. V of this Act shall have effect subject to the provisions of ss. 152-166 of that 1992 Act and that those sections shall be construed as one with this Part.

Right not to be unfairly dismissed

C5654 Right of employee not to be unfairly dismissed.

1

In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer.

2

This section applies to every employment except in so far as its application is excluded by or under any provision of this Part or by section 141 to 149.

Meaning of unfair dismissal

55 Meaning of “dismissal".

1

In this Part, except as respects a case to which section 56 applies, “dismissal" and “dismiss" shall be construed in accordance with the following provisions of this section.

C572

Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,—

a

the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or

b

where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or

c

the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct.

C573

Where an employer gives notice to an employee to terminate his contract of employment and, at a time within the period of that notice, the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire, the employee shall for the purposes of this Part be taken to be dismissed by his employer, and the reasons for this dismissal shall be taken to be the reasons for which the employer’s notice is given.

C574

In this Part “the effective date of termination"—

a

in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

b

in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect; and

c

in relation to an employee who is employed under a contract for a fixed term, where that term expires without being renewed under the same contract, means the date on which that term expires.

F140 C575

Where the contract of employment is terminated by the employer and the notice required by section 49 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (4)) then, for the purposes of sections 53(2), 64(1)(a), F141. . . and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation to the dismissal.

C576

Where the contract of employment is terminated by the employee and—

a

the material date does not fall during a period of notice given by the employer to terminate that contract; and

b

had the contract been terminated not by the employee but by notice given on the material date by the employer, that notice would have been required by section 49 to expire on a date later than the effective date of termination (as defined by subsection (4)),

then, for the purposes of sections 64(1)(a), F141. . . and 73(3) and paragraph 8(3) of Schedule 14, the later date shall be treated as the effective date of termination in relation to the dismissal.

C577

“Material date” means—

a

in subsection (5), the date when notice of termination was given by the employer or (where no notice was given) the date when the contract of employment was terminated by the employer; and

b

in subsection (6), the date when notice of termination was given by the employee or (where no notice was given) the date when the contract of employment was terminated by the employee.

56 Failure to permit woman to return to work after confinement treated as dismissal.

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then F142subject to section 56A she shall be treated for the purposes of this Part as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return.

F15457A Dismissal in health and safety cases.

1

The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

a

having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, carried out, or proposed to carry out, any such activities,

b

being a representative of workers on matters of health and safety at work, or a member of a safety committee—

i

in accordance with arrangements established under or by virtue of any enactment, or

ii

by reason of being acknowledged as such by the employer,

performed, or proposed to perform, any functions as such a representative or a member of such a committee,

c

being an employee at a place where—

i

there was no such representative or safety committee, or

ii

there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

d

in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, left, or proposed to leave, or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work, or

e

in circumstances of danger which he reasonably believed to be serious and imminent, took, or proposed to take, appropriate steps to protect himself or other persons from the danger.

2

3

Where the reason (or, if more than one, the principal reason) for the dismissal of an employee was that specified in subsection (1)(e), the dismissal shall not be regarded as having been unfair if the employer shows that it was, or would have been, so negligent for the employee to take the steps which he took, or proposed to take, that a reasonable employer might have dismissed him for taking, or proposing to take, them.

57AAF17 Dismissal of employee representatives.

a

b

a candidate in an election in which any person elected will, on being elected, be such an employee representative,

performed, or proposed to perform, any functions or activities as such an employee representative or candidate.

F1858. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1958A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C6159 Dismissal on ground of redundancy.

F147(1) Where the reason or principal reason for the dismissal of an employee was that F148the employee was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by F148the employee and who have not been dismissed by the F149employer, and either-

a

that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was an inadmissible reason; or. . .

b

that F148the employee was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure F150in the case of the employee,

then, for the purposes of this Part, the dismissal shall be regarded as unfair.

F1472

For the purposes of this section “inadmissible”, in relation to a reason, means that it is one of those specified in section F15157A(1) (read with (2) and (3)) 60(a) to (e) F152or 60A(1) (read with (2) and (3))

F1533

For the purposes of this Part “a redundancy case” means a case where the reason or principal reason for the dismissal was that the employee was redundant but the equal application of the circumstances to non-dismissed employees is also shown.

C6260 Dismissal on ground of pregnancy.

4

The following statutory rights are relevant for the purposes of this section, namely—

a

any right conferred by—

i

this Act, or

ii

the M17Wages Act 1986,

for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal;

b

the right conferred by section 49 (minimum notice);

c

the rights conferred by the following provisions of the M18Trade Union and Labour Relations (Consolidation) Act 1992, namely, sections 68, 86, 146, 168, 169 and 170 (deductions from pay, union activities and time off).

C6361 Dismissal of replacement.

1

Where an employer—

a

on engaging an employee informs the employee in writing that his employment will be terminated on the return to work of another employee who is, or will be, absent wholly or partly because of pregnancy or confinement; and

b

dismisses the first-mentioned employee in order to make it possible to give work to the other employee;

then, for the purposes of section 57(1)(b), but without prejudice to the application of section 57(3), the dismissal shall be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

2

Where an employer—

a

on engaging an employee informs the employee in writing that his employment will be terminated on the end of a suspension such as is referred to in section 19 of another employee; and

b

dismisses the first-mentioned employee in order to make it possible to allow the other employee to resume his original work;

F2062. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2162A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63 Pressure on employer to dismiss unfairly.

In determining, for the purposes of this Part any question as to the reason, or principal reason, for which an employee was dismissed or any question whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirements of section 57(1)(b) or whether the employer acted reasonably in treating it as a sufficient reason for dismissing him,—

a

no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee, and

b

any such question shall be determined as if no such pressure had been exercised.

Exclusion of section 54

C6464 Qualifying period and upper age limit.

C651

F156. . . section 54 does not apply to the dismissal of an employee from any employment if the employee—

a

was not continuously employed for a period of not less than F157two years ending with the effective date of termination, or

F158b

attained the following age on or before the effective date of termination, that is to say—

i

if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age; and

ii

in any other case, the age of sixty-five.

2

If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 19(1), subsection (1)(a) shall have effect in relation to that dismissal as if for the words F159two years there were substituted the words F160one month.

3

F161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1623

Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

4

For the purposes of subsection (3) “inadmissible”, in relation to a reason, means that it is one of those specified in section F16357A(1) (read with (2) and (3)) 60(a) to (e) F164or 60A(1) (read with (2) and (3)).

5

Subsection (1) shall not apply to a case falling within section 60(f).

F2264A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 Exclusion in respect of dismissal procedures agreement.

1

An application may be made jointly to the Secretary of State by all the parties to a dismissal procedures agreement to make an order designating that agreement for the purposes of this section.

2

On any such application the Secretary of State may make such an order if he is satisfied—

a

that every trade union which is a party to the dismissal procedures agreement is an independent trade union;

b

that the agreement provides for procedures to be followed in cases where an employee claims that he has been, or is in the course of being, unfairly dismissed;

c

that those procedures are available without discrimination to all employees falling within any description to which the agreement applies;

d

that the remedies provided by the agreement in respect of unfair dismissal are on the whole as beneficial as (but not necessarily identical with) those provided in respect of unfair dismissal by this Part;

e

that the procedures provided by the agreement include a right to arbitration or adjudication by an independent referee, or by a tribunal or other independent body, in cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached; and

f

that the provisions of the agreement are such that it can be determined with reasonable certainty whether a particular employee is one to whom the agreement applies or not.

3

Where a dismissal procedures agreement is designated by an order under this section which is for the time being in force, the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 54; and accordingly that section shall not apply to the dismissal of an employee from any employment if it is employment to which, and he is an employee to whom, those provisions of the agreement apply.

4

Subsection (3) shall not apply to the F165right conferred by section 60 or 60A(1)..

66 Revocation of exclusion order under s. 65.

1 F1662

If F167at any time when an order under section 65 is in force, in respect of a dismissal procedures agreement the Secretary of State is satisfied, whether on an application by any of the parties to the agreement or otherwise, either—

a

that it is the desire of all the parties to the dismissal procedures agreement that the order should be revoked, or

b

that the agreement has ceased to fulfil all the conditions specified in section 65(2),

the Secretary of State shall revoke the order by a further order made under this section.

3

Any order made under this section may contain such transitional provisions as appear to the Secretary of State to be appropriate in the circumstances, and, in particular, may direct—

a

that, notwithstanding section 65(3), an employee shall not be excluded from his rights under section 54 where the effective date of termination falls within a transitional period which is specified in the order and is a period ending with the date on which the order under this section takes effect and shall have an extended time for presenting a complaint under section 67 in respect of a dismissal where the effective date of termination falls within that period, and

b

that in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, where the effective date of terminations falls within that transitional period, an industrial tribunal shall have regard to such considerations (in addition to those specified in this Part and paragraph 2 of Schedule 9) as may be specified in the order.

Remedies for unfair dismissal

67 Complaint to industrial tribunal.

1

A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.

C662

Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.

F1683

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

An industrial tribunal shall consider a complaint under this section if, where the dismissal is with notice, the complaint is presented after the notice is given notwithstanding that it is presented before the effective date of termination and in relation to such a complaint the provisions of this Act, so far as they relate to unfair dismissal, shall have effect—

a

as if references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires;

b

as if references to reinstatement included references to the withdrawal of the notice by the employer;

c

as if references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice; and

d

as if references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.

68 Remedies for unfair dismissal.

1

Where on a complaint under section 67 an industrial tribunal finds that the grounds of the complaint are well-founded, it shall explain to the complainant what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made, and shall ask him whether he wishes the tribunal to make such an order, and if he does express such a wish the tribunal may make an order under section 69.

2

If on a complaint under section 67 the tribunal finds that the grounds of the complaint are well-founded and no order is made under section 69, the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with F169sections 72 to 76, to be paid by the employer to the employee.

69 Order for reinstatement or re-engagement.

1

An order under this section may be an order for reinstatement (in accordance with subsections (2) and (3)) or an order for re-engagement (in accordance with subsection (4)), as the industrial tribunal may decide, and in the latter case may be on such terms as the tribunal may decide.

2

An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed, and on making such an order the tribunal shall specify—

a

any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of reinstatement;

b

any rights and privileges, including seniority and pension rights, which must be restored to the employee; and

c

the date by which the order must be complied with.

3

Without prejudice to the generality of subsection (2), if the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.

4

An order for re-engagement is an order that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the tribunal shall specify the terms on which re-engagement is to take place including—

a

the identity of the employer;

b

the nature of the employment;

c

the remuneration for the employment;

d

e

any rights and privileges, including seniority and pension rights, which must be restored to the employee; and

f

the date by which the order must be complied with.

5

In calculating for the purpose of subsection (2)(a) or (4)(d) of section 69 any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement or re-engagement by way of—

a

wages in lieu of notice or ex gratia payments paid by the employer;

b

remuneration paid in respect of employment with another employer;

and such other benefits as the tribunal thinks appropriate in the circumstances.

71 Enforcement of s. 69 order and compensation.

1

If an order under section 69 is made and the complainant is reinstated or, as the case may be, re-engaged but the terms of the order are not fully complied with, then, subject to F170subsection (1A), an industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, of such amount as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order.

F1711A

Subsection (1) is subject to section 75 except that the limit imposed by that section may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 69(2)(a) or (4)(d), as the case may be.

2

Subject to subsection (1), if an order under section 69 is made but the complainant is not reinstated or, as the case may be, re-engaged in accordance with the order—

a

the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with F172sections 72 to 76, to be paid by the employer to the employee; and

C67b

F173unlessF174the case is one where this paragraph is excluded or the employer satisfies the tribunal that it was not practicable to comply with the order, the tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount—

i

where the dismissal is of a description referred to in subsection (3), not less than twenty-six nor more than fifty-two weeks’ pay, or

ii

in any other case, not less than thirteen nor more than twenty-six weeks’ pay.

F1752A

Subsection (2)(b) is excluded where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason.

2B

For the purposes of subsection (2A) a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).

3

The descriptions of dismissal in respect of which an employer may incur a higher additional award in accordance with subsection (2)(b)(i) are the following, that is to say,—

a

F176b

a dismissal which is an act of discrimination within the meaning of the M19Sex Discrimination Act 1975 which is unlawful by virtue of that Act;

c

a dismissal which is an act of discrimination within the meaning of the M20Race Relations Act 1976 which is unlawful by virtue of that Act.

4

Where in any case an employer has engaged a permanent replacement for a dismissed employee the tribunal shall not take that fact into account in determining, for the purposes of subsection (2)(b) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement.

5

Where in any case an industrial tribunal makes an award of compensation for unfair dismissal, calculated in accordance with F177sections 72 to 76, and the tribunal finds that the complainant has unreasonably prevented an order under section 69 from being complied with, it shall, without prejudice to the generality of section 74(4), take that conduct into account as a failure on the part of the complainant to mitigate his loss.

Amount of compensation

72F178 Compensation for unfair dismissal.

F1791

Where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) the award shall consist of—

a

a basic award calculated in accordance with section 73, and

b

a compensatory award calculated in accordance with section 74.

F1792

Where the reason (or, if more than one, the principal reason) for the dismissal or, in a redundancy case, for selecting the employee for dismissal, was an inadmissible reason, then, unless—

a

the complainant does not request the tribunal to make an order under section 69, or

b

the case falls within section 73(2),

the award shall include a special award calculated in accordance with section 75A.

3

For the purposes of subsection (2) a reason is “inadmissible” if it is one of those specified in section 57A(1)(a) and (b).

F2372A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

73 Calculation of basic award.

1

The amount of the basic award shall be the amount calculated in accordance with subsections (3) to F180(6A), subject to—

a

subsection (2) of this section (which provides for an award of two weeks’ pay in certain redundancy cases);

b

F182 F181ba

subsection (7A) (which provides for the amount of the award to be reduced where the employee has unreasonably refused an offer of reinstatement);

bb

subsection (7B) (which provides for the amount of the award to be reduced because of the employee’s conduct);

Where the tribunal finds that the complainant has unreasonably refused an offer by the employer which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed, the tribunal shall reduce or further reduce the amount of the basic award to such an extent as it considers just and equitable having regard to that finding.

7B

Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given), F191, was such that it would be just and equitable to reduce or further reduce that amount of the basic award to any extent, the tribunal shall reduce or further reduce the amount accordingly.

F1927C

Subsection (7B) does not apply F193in a redundancy case unless the reason for selecting the employee for dismissal was an inadmissible reason; and, in that event, subsection (7B) shall apply only to so much of the basic award as is payable because of subsection (6A).

8 F1949

The amount of the basic award shall be reduced or, as the case may be, be further reduced, by the amount of any redundancy payment awarded by the tribunal under Part VI in respect of the same dismissal or of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise.

74 Calculation of compensatory award.

1

Subject to F195subsection (8) and section 76, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

2

The said loss shall be taken to include—

a

any expenses reasonably incurred by the complainant in consequence of the dismissal, and

b

subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

3

The said loss, in respect of any loss of any entitlement or potential entitlement to, or expectation of, a payment on account of dismissal by reason of redundancy, whether in pursuance of Part VI or otherwise, shall include only the loss referable to the amount, if any, by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under F196section 73(7A) to (9) in respect of the same dismissal.

4

In ascertaining the said loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or of Scotland, as the case may be.

5

In determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee, and that question shall be determined as if no such pressure had been exercised.

6

Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

7

If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise, exceeds the amount of the basic award which would be payable but for section 73(9) that excess shall go to reduce the amount of the compensatory award.

F1978

Subsection (1) is subject also to section 75 except that, in the case of an award of compensation under section 71(2)(a) where an additional award falls to be made, the limit imposed by section 75 may be exceeded to the extent necessary to enable the award fully to reflect the amount specified as payable under section 69(2)(a) or (4)(d), as the case may be, if that limit would otherwise reduce the amount of the compensatory award when added to the additional award.

75C68 Limit on compensation.

1

The amount of compensation awarded to a person under section 71(1) or of a compensatory award to a person calculated in accordance with section 74 shall F198(save where the exception in section 71(1A) or 74(8) applies) not exceed F199£11,000.

2

The Secretary of State may by order increase the said limit of £5,200 or that limit as from time to time increased under this subsection, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

3

It is hereby declared for the avoidance of doubt that the limit imposed by this section applies to the amount which the industrial tribunal would, apart from this section, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.

75AF200 Calculation of special award.

1

Subject to the following provisions of this section, the amount of the special award shall be—

a

one week’s pay multiplied by 104, or

b

£13,400,

whichever is the greater, but shall not exceed £26,800.

2

Where the award of compensation is made under section 71(2)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the preceding order under section 69, the amount of the special award shall be increased to—

a

one week’s pay multiplied by 156, or

b

£20,100,

whichever is the greater, but subject to the following provisions of this section.

3

In a case where the amount of the basic award is reduced under section 73(5), the amount of the special award shall be reduced by the same fraction.

4

Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

5

Where the tribunal finds that the complainant has unreasonably—

a

prevented an order under section 69 from being complied with, or

b

refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed,

the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding.

6

Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining for the purposes of subsection (2) whether it was practicable to comply with an order under section 69 unless the employer shows that it was not practicable for him to arrange for the complainant’s work to be done without engaging a permanent replacement.

7

The Secretary of State may by order increase any of the sums specified in subsections (1) and (2).

8

No order shall be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

76 Compensation for act which is both sex or racial discrimination (or both) and unfair dismissal.

1

Where compensation falls to be awarded in respect of any act both under the provisions of this Act relating to unfair dismissal and under one or both of the following Acts, namely the M23Sex Discrimination Act 1975 and the M24Race Relations Act 1976, an industrial tribunal shall not award compensation under any one of those two or, as the case may be, three Acts in respect of any loss or other matter which is or has been taken into account under the other or any other of them by the tribunal or another industrial tribunal in awarding compensation on the same or another complaint in respect of that act.

2

Without prejudice to section 75 (whether as enacted or as applied by F201. . . section 56 of the Race Relations Act 1976) F202in a case where compensation falls to be awarded in respect of any act both under the provisions of this Act relating to unfair dismissal and under the Race Relations Act 1976, the aggregate of the following amounts of compensation awarded by an industrial tribunal, that is to say—

F203a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

any compensation awarded under the said Act of 1976; and

c

any compensation awarded under section 71(1) or, as the case may be, which is calculated in accordance with section 74.

shall not exceed the limit for the time being imposed by section 75.

F2476A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2576B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26Interim relief

Annotations:

Amendments (Textual)

F26

Ss. 77-79 and cross heading inserted (30.8.1993) by 1993 c. 19, s. 28, Sch. 5 para.10; S.I. 1993/1908, art. 2(1), Sch.1 (previous versions of ss. 77-79 having been repealed (16.10.1992) by 1992 c. 52, Sch. 1).

77F204Interim relief pending determination of complaint of unfair dismissal.

1

An employee who presents a complaint to an industrial tribunal that he has been unfairly dismissed by his employer and that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 57A(1)(a) and (b) may apply to the tribunal for interim relief.

2

The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).

3

The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.

4

The tribunal shall give to the employer (not later than seven days before the date of the hearing) a copy of the application together with notice of the date, time and place of the hearing.

5

The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

77AF207Procedure on hearing of application and making of order.

1

If on hearing an employee’s application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal was one of those specified in section 57A(1)(a) and (b) the following provisions shall apply.

2

The tribunal shall announce its findings and explain to both parties (if present) what powers the tribunal may exercise on the application and in what circumstances it will exercise them, and shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint—

a

to reinstate the employee, that is to say, to treat him in all respects as if he had not been dismissed, or

b

if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

3

For this purpose “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal.

4

If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.

5

b

in the case of a payment for any past period, within such time as may be specified in the order.

4

If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.

5

Any payment made to an employee by an employer under his contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, shall go towards discharging the employer’s liability in respect of that period under subsection (2); and, conversely, any payment under that subsection in respect of a period shall go towards discharging any liability of the employer under, or in respect of breach of, the contract of employment in respect of that period.

6

If an employee, on or after being dismissed by his employer, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the tribunal shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.

7

For the purposes of this section, the amount which an employee could reasonably have been expected to earn, his normal pay period and the normal pay day for each such period shall be determined as if he had not been dismissed.

78AF208Application for variation or revocation of order.

1

At any time between the making of an order under section 77A and the determination or settlement of the complaint, the employer or the employee may apply to an industrial tribunal for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.

2

Sections 77 and 77A apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, section 77(4) has effect with the substitution of a reference to the employee for the reference to the employer.

79F206 Consequence of failure to comply with order.

Modifications etc. (not altering text)

Pt. VI (ss. 81–120) modified by Local Government Act 1985 (c. 51, SIF 81:1), s. 59(1)

Pt. VI modified (3.4.1995) by 1994 c. 19, s. 44(1)(a) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 7, Sch. 3

Pt. VI (ss. 81–120) excluded (S.) by Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2), s. 1, Sch. 1 para. 10(2), Housing (Scotland) Act 1988 (c. 43, SIF 61), s. 1(2), Sch. 1 para. 12(2) and Enterprise and New Towns (Scotland) Act 1990 (c. 35, SIF 64), s. 1, Sch. 1 para. 17(2)

Pt. VI (ss. 81–120) excluded by Legal Aid Act 1988 (c. 34, SIF 77:1), s. 45(4) Sch. 7 para. 7(3)(b), Housing Act 1988 (c. 50, SIF 61), s. 46(2), Sch. 5 para. 10(2), Electricity Act 1989 (c. 29, SIF 44:1), ss. 56(2), 113(2), Sch. 17 para. 35 and Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 137(4), Sch. 10 para. 16

Pt. VI (ss. 81-120) excluded (S.) (27. 11. 1991) by Natural Heritage (Scotland) Act 1991 (c. 28, SIF 46:1), s. 14, Sch. 4 para.5; S.I. 1991/2633, art. 3,Sch.

Pt. VI (ss. 81-120): certain functions, rights and liabilities of the London Residuary Body in relation to redundancy payments payable under Part VI of this Act, transferred (1.4.1992) to the London Pensions Fund Authority by S.I. 1992/331, arts. 2(1)(g)(4), 3.

Right to redundancy payment

C70 C7181 General provisions as to right to redundancy payment. C69

1

Where an employee who has been continuously employed for the requisite period—

a

is dismissed by his employer by reason of redundancy, or

b

is laid off or kept on short-time to the extent specified in subsection (1) of section 88 and complies with the requirements of that section,

then, subject to the following provisions of this Act, the employer shall be liable to pay to him a sum (in this Act referred to as a “redundancy payment”) calculated in accordance with Schedules 4, 13 and 14.

2

For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

a

the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

b

the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish.

For the purposes of this subsection, the business of the employers together with the business or businesses of his associated employers shall be treated as one unless either of the conditions specified in this subsection would be satisfied without so treating those businesses.

F2102A

For the purposes of subsection (2) the activities carried on by a local education authority with respect to the schools maintained by it and the activities carried on by the governors of those schools shall be treated as one business unless either of the conditions specified in subsection (2) would be satisfied without so treating them.

3

In subsection (2), “cease” means cease either permanently or temporarily and from whatsoever cause, and “diminish" has a corresponding meaning.

C724

For the purposes of subsection (1), the requisite period is the period of two years ending with the relevant date, F211

C7482 General exclusions from right to redundancy payment. C73

F212 C751

An employee shall not be entitled to a redundancy payment if he has before the relevant date attained the following age, that is to say—

a

in a case where—

i

in the business for the purposes of which he was employed there was a normal retiring age of less than sixty-five for an employee holding the position which he held, and

ii

where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or

c

the employee terminates that contract with or without notice, in circumstances (not falling within section 92(4)) such that he is entitled to terminate it without notice by reason of the employer’s conduct.

C79 C8084 Renewal of contract or re-engagement. C78

1

If an employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made by his employer before the ending of his employment under the previous contract, and the renewal or re-engagement takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter, then, subject to subsections (3) to (6), the employee shall not be regarded as having been dismissed by his employer by reason of the ending of his employment under the previous contract.

2

For the purposes of the application of subsection (1) to a contract under which the employment ends on a Friday, Saturday or Sunday—

a

4

Where, in the circumstances specified in subsection (1), the employer has given notice to the employee under subsection (3), and on a reference to a tribunal it appears to the tribunal, having regard both to the reasons for which the employee seeks to leave the employment and those for which the employer requires him to continue in it, to be just and equitable that the employee should receive the whole or part of any redundancy payment to which he would have been entitled apart from subsection (3), the tribunal may determine that the employer shall be liable to pay to the employee—

a

the whole of the redundancy payment to which the employee would have been so entitled, or

b

such part of that redundancy payment as the tribunal thinks fit.

5

In this section—

a

if the actual period of the employer’s notice (that is to say, the period beginning at the time when the notice is given and ending at the time when it expires) is equal to the minimum period which (whether by virtue of any enactment or otherwise) is required to be given by the employer to terminate the contract of employment, “the obligatory period", in relation to that notice, means the actual period of the notice;

b

in any other case, “the obligatory period", in relation to an employer’s notice, means that period which, being equal to the minimum period referred to in paragraph (a), expires at the time when the employer’s notice expires.

86 Failure to permit woman to return to work after confinement treated as dismissal.

Where an employee is entitled to return to work and has exercised her right to return in accordance with section 47 but is not permitted to return to work, then she shall be treated for the purposes of the provisions of this Part as if she had been employed until the notified day of return, and, if she would not otherwise be so treated, as having been continuously employed until that day, and as if she had been dismissed with effect from that day for the reason for which she was not permitted to return.

87 Lay-off and short-time.

1

Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind which he is employed to do, he shall, for the purposes of this Part, be taken to be laid off for any week in respect of which, by reason that the employer does not provide such work for him, he is not entitled to any remuneration under the contract.

2

Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee’s remuneration for any week is less than half a week’s pay, he shall for the purposes of this Part be taken to be kept on short-time for that week.

88 Right to redundancy payment by reason of lay-off or short-time.

1

An employee shall not be entitled to a redundancy payment by reason of being laid off or kept on short-time unless he gives notice in writing to his employer indicating (in whatsoever terms) his intention to claim a redundancy payment in respect of lay-off or short-time (in this Act referred to as a “notice of intention to claim”) and, before the service of that notice, either—

a

he has been laid off or kept on short-time for four or more consecutive weeks of which the last before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date, or

b

he has been laid off or kept on short-time for a series of six or more weeks (of which not more than three were consecutive) within a period of thirteen weeks, where the last week of the series before the service of the notice ended on the date of service thereof or ended not more than four weeks before that date.

2

Where an employee has given notice of intention to claim,—

a

he shall not be entitled to a redundancy payment in pursuance of that notice unless he terminates his contract of employment by a week’s notice which (whether given before or after or at the same time as the notice of intention to claim) is given before the end of the period allowed for the purposes of this paragraph (as specified in subsection (5) of section 89), and

b

he shall not be entitled to a redundancy payment in pursuance of the notice of intention to claim if he is dismissed by his employer (but without prejudice to any right to a redundancy payment by reason of the dismissal):

Provided that, if the employee is required by his contract of employment to give more than a week’s notice to terminate the contract, the reference in paragraph (a) to a week’s notice shall be construed as a reference to the minimum notice which he is so required to give.

3

Subject to subsection (4), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

4

Subsection (3) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

89 Supplementary provisions relating to redundancy payments in respect of lay-off or short-time.

1

If, in a case where an employee gives notice of intention to claim and the employer gives notice under section 88(4) (in this section referred to as a “counter-notice”), the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (3) of section 88 was not fulfilled.

2

For the purposes of both subsection (1) of section 88 and subsection (1) of this section, it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

3

For the purposes mentioned in subsection (2), no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out (within the meaning of paragraph 24 of Schedule 13) whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in Great Britain or elsewhere.

4

Where the employer gives a counter-notice within seven days after the service of a notice of intention to claim, and does not withdraw the counter-notice by a subsequent notice in writing, the employee shall not be entitled to a redundancy payment in pursuance of the notice of intention to claim except in accordance with a decision of an industrial tribunal.

5

The period allowed for the purposes of subsection (2)(a) of section 88 is as follows, that is to say,—

a

if the employer does not give a counter-notice within seven days after the service of the notice of intention to claim, that period is three weeks after the end of those seven days;

b

if the employer gives a counter-notice within those seven days, but withdraws it by a subsequent notice in writing, that period is three weeks after the service of the notice of withdrawal;

c

if the employer gives a counter-notice within those seven days and does not so withdraw it, and a question as to the right of the employee to a redundancy payment in pursuance of the notice of intention to claim is referred to a tribunal, that period is three weeks after the tribunal has notified to the employee its decision on that reference.

6

For the purposes of paragraph (c) of subsection (5) no account shall be taken of any appeal against the decision of the tribunal, or of any requirement to the tribunal to state a case for the opinion of the High Court or the Court of Session, or of any proceedings or decision in consequence of such an appeal or requirement.

90 The relevant date.

1

Subject to the following provisions of this section, for the purposes of the provisions of this Act so far as they relate to redundancy payments, “the relevant date”, in relation to the dismissal of an employee—

a

where his contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

b

where his contract of employment is terminated without notice, means the date on which the termination takes effect;

c

where he is employed under a contract for a fixed term and that term expires as mentioned in subsection (2)(b) of section 83, means the date on which that term expires;

d

where he is treated, by virtue of subsection (6) of section 84, as having been dismissed on the termination of his employment under a previous contract, means—

i

for the purposes of section 101, the date which is the relevant date as defined by paragraph (a), (b) or (c) in relation to the renewed, or new, contract, or, where there has been more than one trial period under section 84, the last such contract; and

ii

for the purposes of any other provision, the date which is the relevant date as defined by paragraph (a), (b) or (c) in relation to the previous contract, or, where there has been more than one trial period under section 84, the original contract; and

e

where he is taken to be dismissed by virtue of section 85(2), means the date on which the employee’s notice to terminate his contract of employment expires.

2

“The relevant date”, in relation to a notice of intention to claim or a right to a redundancy payment in pursuance of such a notice,—

a

in a case falling within paragraph (a) of subsection (1) of section 8, means the date on which the last of the four or more consecutive weeks before the service of the notice came to an end, and

b

in a case falling within paragraph (b) of that subsection means the date on which the last of the series of six or more weeks before the service of the notice came to an end.

3

Where the notice required to be given by an employer to terminate a contract of employment by section 49(1) would, if duly given when notice of termination was given by the employer, or (where no notice was given) when the contract of employment was terminated by the employer, expire on a date later than the relevant date as defined by subsection (1), then for the purposes of section 81(4) and paragraph 1 of Schedule 4 and paragraph 8(4) of Schedule 14, that later date shall be treated as the relevant date in relation to the dismissal.

91 Reference of questions to tribunal.

1

Any question arising under this Part as to the right of an employee to a redundancy payment, or as to the amount of a redundancy payment, shall be referred to and determined by an industrial tribunal.

2

For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

3

In relation to lay-off or short-time, the questions which may be referred to and determined by an industrial tribunal, as mentioned in subsection (1), shall include any question whether an employee will become entitled to a redundancy payment if he is not dismissed by his employer and he terminates his contract of employment as mentioned in subsection (2)(a) of section 88; and any such question shall for the purposes of this Part be taken to be a question as to the right of the employee to a redundancy payment.

92 Special provisions as to termination of contract in cases of misconduct or industrial dispute.

1

Where at any such time as is mentioned in subsection (2), an employee who—

a

has been given notice by his employer to terminate his contract of employment, or

b

has given notice to his employer under subsection (1) of section 88,

takes part in a strike, in such circumstances that the employer is entitled, by reason of his taking part in the strike, to treat the contract of employment as terminable without notice, and the employer for that reason terminates the contract as mentioned in subsection (2) of section 82, that subsection shall not apply to that termination of the contract.

2

The times referred to in subsection (1) are—

a

in a case falling within paragraph (a) of that subsection any time within the obligatory period of the employer’s notice (as defined by section 85(5)), and

b

in a case falling within paragraph (b) of subsection (1), any time after the service of the notice mentioned in that paragraph.

3

Where at any such time as is mentioned in subsection (2) an employee’s contract of employment, otherwise than by reason of his taking part in a strike, is terminated by his employer in the circumstances specified in subsection (2) of section 82, and is so terminated as mentioned therein, and on a reference to an industrial tribunal it appears to the tribunal, in the circumstances of the case, to be just and equitable that the employee should receive the whole or part of any redundancy payment to which he would have been entitled apart from section 82(2), the tribunal may determine that the employer shall be liable to pay to the employee—

a

the whole of the redundancy payment to which the employee would have been so entitled, or

b

such part of that redundancy payment as the tribunal thinks fit.

4

Where an employee terminates his contract of employment without notice, being entitled to do so by reason of a lock-out by his employer, section 83(2)(c) shall not apply to that termination of the contract.

5

In this section “strike” and “lock-out” each has the meaning given by paragraph 24 of Schedule 13.

93 Implied or constructive termination of contract.

1

Where in accordance with any enactment or rule of law—

a

any act on the part of an employer, or

b

any event affecting an employer (including, in the case of an individual, his death),

operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer, if apart from this subsection it would not constitute a termination of the contract by him and, in particular, the provisions of sections 83, 84 and 90 shall apply accordingly.

2

Where subsection (1) applies, and the employee’s contract of employment is not renewed, and he is not re-engaged under a new contract of employment, so as to be treated, by virtue of section 84(1), as not having been dismissed, he shall, without prejudice to section 84(6), be taken for the purposes of this Part to be dismissed by reason of redundancy if the circumstances in which his contract is not so renewed and he is not so re-engaged are wholly or mainly attributable to one or other of the facts specified in paragraphs (a) and (b) of section 81(2).

3

For the purposes of subsection (2), section 81(2)(a), in so far as it relates to the employer ceasing or intending to cease to carry on the business, shall be construed as if the reference to the employer included a reference to any person to whom, in consequence of the act or event in question, power to dispose of the business has passed.

F2134

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2794. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2895. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

96 Exemption orders.

1

If at any time there is in force an agreement between one or more employers or organisations of employers and one or more trade unions representing employees, whereby employees to whom the agreement applies have a right in certain circumstances to payments on the termination of their contracts of employment, and, on the application of all the parties to the agreement, the Secretary of State, having regard to the provisions of the agreement, is satisfied that section 81 should not apply to those employees, he may make an order under this section in respect of that agreement.

2

The Secretary of State shall not make an order under this section in respect of an agreement unless the agreement indicates (in whatsoever terms) the willingness of the parties to it to submit to an industrial tribunal such questions as are mentioned in paragraph (b) of subsection (3).

3

Where an order under this section is in force in respect of an agreement—

a

section 81 shall not have effect in relation to any employee who immediately before the relevant date is an employee to whom the agreement applies, but

b

section 91 shall have effect in relation to any question arising under the agreement as to the right of an employee to a payment on the termination of his employment, or as to the amount of such a payment, as if the payment were a redundancy payment and the question arose under this Part.

4

Any order under this section may be revoked by a subsequent order thereunder, whether in pursuance of an application made by all or any of the parties to the agreement in question or without any such application.

F2997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

98 Exclusion or reduction of redundancy payment on account of pension rights.

1

The Secretary of State shall by regulations make provision for excluding the right to a redundancy payment, or reducing the amount of any redundancy payment, in such cases as may be prescribed by the regulations, being cases in which an employee has (whether by virtue of any statutory provision or otherwise) a right or claim (whether legally enforceable or not) to a periodical payment or lump sum by way of pension, gratuity or superannuation allowance which is to be paid by reference to his employment by a particular employer and is to be paid, or to begin to be paid, at the time when he leaves that employment or within such period thereafter as may be prescribed by the regulations.

2

Provision shall be made by any such regulations for securing that the right to a redundancy payment shall not be excluded, and that the amount of a redundancy payment shall not be reduced, by reason of any right or claim to a periodical payment or lump sum, in so far as that payment or lump sum represents such compensation as is mentioned in section 118(1) and is payable under a statutory provision, whether made or passed before, on or after the passing of this Act.

3

In relation to any case where, under section 85 or 92 or 110, an industrial tribunal determines that an employer is liable to pay part (but not the whole) of a redundancy payment, any reference in this section to a redundancy payment, or to the amount of a redundancy payment, shall be construed as a reference to that part of the redundancy payment, or to the amount of that part, as the case may be.

99 Public offices, etc.C82

1

Without prejudice to any exemption or immunity of the Crown, section 81 shall not apply to any person in respect of any employment which—

a

is employment in a public office for the purposes of section 38 of the M26Superannuation Act 1965, or

b

whether by virtue of that Act or otherwise, is treated for the purposes of pensions and other superannuation benefits as service in the civil service of the State, F214or

F215c

is employment by any such body as is specified in Schedule 5.

2

Without prejudice to any exemption or immunity of the Crown, section 81 shall not apply to any person in respect of his employment in any capacity under the Government of an overseas territory (as defined by section 114).

100 Domestic servants.

1

For the purposes of the application of the provisions of this Part to an employee who is employed as a domestic servant in a private household, those provisions F216. . . shall apply as if the household were a business and the maintenance of the household were the carrying on of that business by the employer.

2

F217section 81 shall not apply to any person in respect of employment as a domestic servant in a private household, where the employer is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, or half-sister of the employee.

C83101 Claims for redundancy payments.

1

Notwithstanding anything in the preceding provisions of this Part, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date—

a

the payment has been agreed and paid, or

b

the employee has made a claim for the payment by notice in writing given to the employer, or

c

a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to an industrial tribunal or

d

a complaint relating to his dismissal has been presented by the employee under section 67.

2

An employee shall not by virtue of subsection (1) lose his right to a redundancy payment if, during the period of six months immediately following the period mentioned in that subsection, the employee—

a

makes such a claim as is referred to in paragraph (b) of that subsection,

b

refers to a tribunal such a question as is referred to in paragraph (c) of that subsection, or

c

makes such a complaint as is referred to in paragraph (d) of that subsection,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment having regard to the reason shown by the employee for his failure to take any such step as is referred to in paragraph (a), (b) or (c) of this subsection within the period mentioned in subsection (1), and to all the other relevant circumstances.

C84102 Written particulars of redundancy payment.

1

On making any redundancy payment, otherwise than in pursuance of a decision of a tribunal which specifies the amount of the payment to be made, the employer shall give to the employee a written statement indicating how the amount of the payment has been calculated.

2

Any employer who without reasonable excuse fails to comply with subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding F218level 1 on the standard scale.

C853

If an employer fails to comply with the requirements of subsection (1), then (without prejudice to any proceedings for an offence under subsection (2)) the employee may by notice in writing to the employer require him to give to the employee a written statement complying with those requirements within such period (not being less than one week beginning with the day on which the notice is given) as may be specified in the notice; and if the employer without reasonable excuse fails to comply with the notice he shall be guilty of an offence under this subsection and liable on summary conviction—

a

if it is his first conviction of an offence under this subsection, to a fine not exceeding F219£20F219level 3 on the standard scale, or

b

in any other case, to a fine not exceeding F220£100F220level 3 on the standard scale.

Redundancy Fund

F30103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32104A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F33105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

106 Payments out of fund to employees.

1

Where an employee claims that his employer is liable to pay to him an employer’s payment, and either—

a

that the employee has taken all reasonable steps (other than legal proceedings) to recover the payment from the employer and that the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or

b

that the employer is insolvent and that the whole or part of the payment remains unpaid,

the employee may apply to the Secretary of State for a payment under this section.

F2211A

In this Act “employer’s payment”, in relation to an employee, means—

a

a redundancy payment which his employer is liable to pay to him under the foregoing provisions of this Part, or

b

a payment which his employer is, under an agreement in respect of which an order is in force under section 96, liable to make to him on the termination of his contract of employment.

1B

In relation to a case where, under section 85, 92 or 110, an industrial tribunal determines that an employer is liable to pay only part of a redundancy payment, the reference in subsection (1A)(a) above to a redundancy payment shall be construed as a reference to that part of the redundancy payment.

he has died and his estate falls to be administered in accordance with an order under section F228421 of the Insolvency Act 1986; or

c

where the employer is a company, a winding-up order F229or an administration order has been made with respect to it or a resolution for voluntary winding-up has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge F229or F228a voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part.

6

In the application of this section to Scotland, for paragraphs (a), (b) and (c) of subsection (5) there shall be substituted the following paragraphs:—

in Scotland, the prescribed sum within the meaning of section 289B of the M29Criminal Procedure (Scotland) Act 1975 (that is to say, £1,000 or another sum fixed by an order made under section 289D of that Act for that purpose).

C86108F233 References to tribunal relating to payments under s. 106.

1

Where on an application made to the Secretary of State for a payment under section 106 it is claimed that an employer is liable to pay an employer’s payment, there shall be referred to an industrial tribunal—

a

any question as to the liability of the employer to pay the employer’s payment; and

b

any question as to the amount of the sum payable in accordance with Schedule 7.

2

For the purposes of any reference under this section an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy.

F34109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous and supplemental

110 Strike during currency of employer’s notice to terminate contract.

1

The provisions of this section shall have effect where, after an employer has given notice to an employee to terminate his contract of employment (in this section referred to as a “notice of termination”)—

such part of any such redundancy payment as the tribunal thinks fit.

7

The service of a notice of extension, and any extension, by virtue of subsection (4) of the period specified in a notice of termination,—

a

shall not affect any right either of the employer or of the employee to terminate the contract of employment (whether before, at or after the time of expiry) by a further notice or without notice, and

b

shall not affect the operation of sections 81 to 102 in relation to any such termination of the contract of employment.

8

In this section any reference to the number of working days lost by striking is a reference to the number of working days in the period beginning with the date of service of the notice of termination and ending with the time of expiry which are days on which the employee in question takes part in a strike of employees of the employer.

9

In this section, “strike” has the meaning given by paragraph 24 of Schedule 13, “time of expiry", in relation to a notice of termination, means the time at which the notice would expire apart from this section, “working day", in relation to an employee, means a day on which, in accordance with his contract of employment, he is normally required to work, “available day", in relation to an employee, means a working day beginning at or after the time of expiry which is a day on which he is not taking part in a strike of employees of the employer, and “available day within the proposed period of extension” means an available day which begins before the end of that period.

111 Payments equivalent to redundancy rebates in respect of civil servants, etc.

1

The provisions of this section shall have effect with respect to employment of any of the following descriptions, that is to say—

a

any such employment as is mentioned in paragraph (a), paragraph (b) F234or paragraph (c) of subsection (1) of section 99 (whether as originally enacted or as modified by any order under section 149(1));

b

any employment remunerated out of the revenue of the Duchy of Lancaster or the Duchy of Cornwall;

c

any employment remunerated out of the Queen’s Civil List;

d

any employment remunerated out of Her Majesty’s Privy Purse.

C872

Where the Secretary of State is satisfied that a payment has been, or will be, made in respect of the termination of any person’s employment of any description specified in subsection (1), and that the payment has been, or will be, so made to or in respect of him—

a

in accordance with the M30Superannuation Act 1965, as that Act continues to have effect by virtue of section 23(1) of the M31Superannuation Act 1972,

b

in accordance with any provision of a scheme made under section 1 of the Superannuation Act 1972, or

c

in accordance with any such arrangements as are mentioned in subsection (3),

the Secretary of State shall pay the appropriate sum out of the fund to the appropriate fund or authority.

3

The arrangements referred to in paragraph (c) of subsection (2) are any arrangements made with the approval of F235the Treasury for securing that payments by way of compensation for loss of any such employment as is mentioned in subsection (1) will be made—

a

in circumstances which in the opinion of F235the Treasury correspond (subject to the appropriate modifications) to those in which a right to a redundancy payment would have accrued if section 81 had applied, and

b

on a scale which in the opinion of the F235the Treasury, taking into account any sums which are payable as mentioned in subsection (2)(a) or (b) to or in respect of the person losing the employment in question, corresponds (subject to the appropriate modifications) to that on which a redundancy payment would have been payable if section 81 had applied.

4

For the purposes of subsection (2) the appropriate sum is the sum appearing to the Secretary of State to be equal to the amount of the redundancy rebate which would have been payable under section 104 if such a right as is mentioned in paragraph (a) of subsection (3) had accrued, and such a redundancy payment as is mentioned in paragraph (b) of subsection (3) had been payable and had been paid.

5

Any accounts prepared by the Secretary of State under section 103(2) shall show as a separate item the aggregate amount of sums paid under subsection (2) during the period to which the accounts relate.

6

In this section “the appropriate fund or authority"—

a

in relation to employment of any description falling within paragraph 7 of subsection (1) of section 39 of the M32Superannuation Act 1965 (whether as originally enacted or as modified by any order under that section), means the fund out of which, or the body out of whose revenues, the employment is remunerated;

b

in relation to any employment remunerated out of the revenues of the Duchy of Lancaster, means the Chancellor of the Duchy, and, in relation to any employment remunerated out of the revenues of the Duchy of Cornwall, means such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints;

c

in relation to any employment remunerated out of the Queen’s Civil List or out of Her Majesty’s Privy Purse, means the Civil List or the Privy Purse, as the case may be; and

d

in any other case, means the Consolidated Fund.

112 References to tribunal relating to equivalent payments.

1

This section applies to any such payment as is mentioned in subsection (3) of section 111 which is payable in accordance with any such arrangements as are mentioned in that subsection.

2

Where the terms and conditions (whether constituting a contract of employment or not) on which any person is employed in any such employment as is mentioned in subsection (1) of section 111 include provision—

a

for the making of any payment to which this section applies, and

b

for referring to a tribunal any such question as is mentioned in the following provisions of this subsection,

any question as to the right of any person to such a payment in respect of that employment, or as to the amount of such a payment shall be referred to and determined by an industrial tribunal.

F35113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

114 Meaning of “Government of overseas territory".

In this Part “overseas territory” means any territory or country outside the United Kingdom; and any reference to the Government of an overseas territory includes a reference to a Government constituted for two or more overseas territories and to any authority established for the purpose of providing or administering services which are common to, or relate to matters of common interest to, two or more such territories.

115 Application of Part VI to employment not under contract of employment.

1

This section applies to employment of any description which—

a

is not employment under a contract of service or of apprenticeship, and

b

is not employment of any description falling within paragraphs (a) to (d) of section 111(1),

but is employment such that secondary Class 1 contributions are payable under Part I of the M33Social Security Act 1975 in respect of persons engaged therein.

2

The Secretary of State may by regulations under this section provide that, subject to such exceptions and modifications as may be prescribed by the regulations, this Part and the provisions of this Act supplementary thereto shall have effect in relation to any such employment of a description to which this section applies as may be so prescribed as if—

a

it were employment under a contract of employment, and

b

any person engaged in employment of that description were an employee, and

c

such person as may be determined by or under the regulations were his employer.

3

Without prejudice to the generality of subsection (2), regulations made under this section may provide that section 105 shall apply to persons engaged in any such employment of a description to which this section applies as may be prescribed by the regulations, as if those persons were employees to whom that section applies.

116 Provision for treating termination of certain employments by statute as equivalent to dismissal.

1

The Secretary of State may by regulations under this section provide that, subject to such exceptions and modifications as may be prescribed by the regulations, the provisions of this Part shall have effect in relation to any person who, by virtue of any statutory provisions,—

a

is transferred to, and becomes a member of, a body specified in those provisions, but

b

at a time so specified ceases to be a member of that body unless before that time certain conditions so specified have been fulfilled,

as if the cessation of his membership of that body by virtue of those provisions were dismissal by his employer by reason of redundancy.

2

The power conferred by subsection (1) shall be exercisable whether membership of the body in question constitutes employment within the meaning of section 153 or not; and, where that membership does not constitute such employment, that power may be exercised in addition to any power exercisable by virtue of section 115.

117 Employees paid by person other than employer.

1

This section applies to any employee whose remuneration is, by virtue of any statutory provision, payable to him by a person other than his employer.

2

For the purposes of the operation in relation to employees to whom this section applies, of the provisions of this Part and Schedule 13 specified in column 1 of Schedule 8, any reference to the employer which is specified in column 2 of Schedule 8 shall be construed as a reference to the person responsible for paying the remuneration.

2A

F2363

In relation to employees to whom this section applies, section 119 shall have effect as if—

a

any reference in subsection (1) or subsection (2) of that section to a notice required or authorised to be given by or to an employer included a reference to a notice which, by virtue of subsection (2), is required or authorised to be given by or to the person responsible for paying the remuneration;

b

in relation to a notice required or authorised to be given to that person, any reference to the employer in paragraph (a) or paragraph (b) of subsection (2) of that section were a reference to that person; and

c

the reference to the employer in subsection (5) of that section included a reference to that person.

4

In this section and in Schedule 8, “the person responsible for paying the remuneration” means the person by whom the remuneration is payable as mentioned in subsection (1).

118 Statutory compensation schemes.

1

This section applies to any statutory provision which was in force immediately before 6th December 1965, whereby the holders of such situations, places or employments as are specified in that provision are, or may become, entitled to compensation for loss of employment, or for loss of diminution of emoluments or of pension rights, in consequence of the operation of any other statutory provision referred to therein.

2

The Secretary of State may make provision by regulations for securing that where apart from this section a person is entitled to compensation under a statutory provision to which this section applies, and the circumstances are such that he is also entitled to a redundancy payment, the amount of the redundancy payment shall be set off against the compensation to which he would be entitled apart from this section; and any statutory provision to which any such regulations apply shall have effect subject to the regulations.

C88119 Provisions as to notices.

1

Any notice which under this Part is required or authorised to be given by an employer to an employee may be given by being delivered to the employee, or left for him at his usual or last-known place of residence, or sent by post addressed to him at that place.

2

Any notice which under this Part is required or authorised to be given by an employee to an employer may be given either by the employee himself or by a person authorised by him to act on his behalf, and, whether given by or on behalf of the employee,—

a

may be given by being delivered to the employer, or sent by post addressed to him at the place where the employee is or was employed by him, or

b

if arrangements on that behalf have been made by the employer, may be given by being delivered to a person designated by the employer in pursuance of the arrangements, or left for such a person at a place so designated, or sent by post to such a person at an address so designated.

3

In the preceding provisions of this section, any reference to the delivery of a notice shall, in relation to a notice which is not required by this Part to be in writing, be construed as including a reference to the oral communication of the notice.

4

Any notice which, in accordance with any provision of this section, is left for a person at a place referred to in that provision shall, unless the contrary is proved, be presumed to have been received by him on the day on which it was left there.

5

Nothing in subsection (1) or subsection (2) shall be construed as affecting the capacity of an employer to act by a servant or agent for the purposes of any provision of this Part, including either of those subsections.

120 Offences.

1

Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act on any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

2

In this section “director", in relation to a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.

Part VII Insolvency of Employer

F36121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C90122 Employee’s rights on insolvency of employer. C89

1

If on an application made to him in writing by an employee the Secretary of State is satisfied—

a

that the employer of that employee has become insolvent; and

F237aa

that the employment of the employee has been terminated; and

b

e

F2465

The total amount payable to an employee in respect of any debt mentioned in subsection (3), where the amount of that debt is referable to a period of time, shall not exceed F247£205.00 in respect of any one week or, in respect of a shorter period, an amount bearing the same proportion to F247£205.00 as that shorter period bears to a week.

6

The Secretary of State may vary the limit referred to in subsection (5) after a review under section 148, by order made in accordance with that section.

7

A sum shall be taken to be reasonable for the purposes of subsection (3)(e) in a case where a trustee in bankruptcy or liquidator has been or is required to be appointed if it is admitted to be reasonable by the trustee in bankruptcy or liquidator under F248sectionF249348 of the M34 Insolvency Act 1986 (effect of bankruptcy on apprenticeships etc.), whether as originally enacted or as applied to the winding up of a company by rules under F249section 411 of that Act.

8

Subsection (7) shall not apply to Scotland, but in Scotland a sum shall be taken to be reasonable for the purposes of subsection (3)(e) in a case where a trustee in bankruptcy or liquidator has been or is required to be appointed if it is F250accepted by the trustee in bankruptcy or the liquidator for the purposes of the bankruptcy or winding up.

9

The provisions of subsections (10) and (11) shall apply in a case where one of the following officers (hereafter in this section referred to as the “relevant officer”) has been or is required to be appointed in connection with the employer’s insolvency, that is to say, a trustee in bankruptcy, a liquidator, F251an administrator, a receiver or manager, or a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer; and in this subsection F252“trustee”, in relation to a composition or arrangement, includes the supervisor of aF249voluntary arrangement proposed for the purposes of, and approved under, Part I or VIII of the Insolvency Act 1986.

10

Subject to subsection (11), the Secretary of State shall not in such a case make any payment under this section in respect of any debt until he has received a statement from the relevant officer of the amount of that debt which appears to have been owed to the employee on the relevant date and to remain unpaid; and the relevant officer shall, on request by the Secretary of State, provide him, as soon as reasonably practicable, with such a statement.

F25311

If the Secretary of State is satisfied that he does not require such a statement in order to determine the amount of the debt that was owed to the employee on the relevant date and remains unpaid, he may make a payment under this section in respect of the debt without having received such a statement.

C92123 Payment of unpaid contributions to occupational pension scheme. C91

1

If, on application made to him in writing by the persons competent to act in respect of an occupational pension scheme F254or a personal pension scheme, the Secretary of State is satisfied that an employer has become insolvent and that at the time that he did so there remained unpaid relevant contributions falling to be paid by him to the scheme, the Secretary of State shall, subject to the provisions of this section, pay into the resources of the scheme out of F255the National Insurance Fund the sum which in his opinion is payable in respect of the unpaid relevant contributions.

2

In this section “relevant contributions” means contributions falling to be paid by an employer F256to an occupational pension scheme or a personal pension scheme, either on his own account or on behalf of an employee; and for the purposes of this section a contribution of any amount shall not be treated as falling to be paid on behalf of an employee unless a sum equal to that amount has been deducted from the pay of the employee by way of a contribution from him.

3

1

Where, in pursuance of section 122, the Secretary of State makes any payment to an employee in respect of any debt to which that section applies—

a

any rights and remedies of the employee in respect of that debt (or, if the Secretary of State has paid only part of it, in respect of that part) shall, on the making of the payment, become rights and remedies of the Secretary of State; and

a preferential debt within the meaning of the Insolvency Act 1986 for the purposes of any provision mentioned in subsection (2)(a) above; or

b

a preferred debt within the meaning of the Bankruptcy (Scotland) Act 1985 for the purposes of any provision mentioned in subsection (2)(b) above,

then, without prejudice to the generality of subsection (3) above, there shall be included among the rights and remedies which become rights and remedies of the Secretary of State in accordance with that subsection any right arising under any such provision by reason of the status of that sum (or that part of it) as a preferential or preferred debt.

3B

In computing for the purposes of any provision referred to in subsection (3A)(a) or (b) above the aggregate amount payable in priority to other creditors of the employer in respect of—

a

any claim of the Secretary of State to be so paid by virtue of subsection (3A) above; and

b

any claim by the persons competent to act in respect of the scheme,

any claim falling within paragraph (a) above shall be treated as if it were a claim of those persons; but the Secretary of State shall be entitled, as against those persons, to be so paid in respect of any such claim of his (up to the full amount of the claim) before any payment is made to them in respect of any claim falling within paragraph (b) above.

4

Any sum recovered by the Secretary of State in exercising any right or pursuing any remedy which is his by virtue of this section shall be paid into F269the National Insurance Fund.

126 Power of Secretary of State to obtain information in connection with applications.

1

Where an application is made to the Secretary of State under section 122 or 123 in respect of a debt owed, or contributions to an occupational pension scheme F270or a personal pension scheme falling to be made, by an employer, the Secretary of State may require—

a

the employer to provide him with such information as the Secretary of State may reasonably require for the purpose of determining whether the application is well-founded; and

b

any person having the custody or control of any relevant records or other documents to produce for examination on behalf of the Secretary of State any such document in that person’s custody or under his control which is of such a description as the Secretary of State may require.

2

Any such requirement shall be made by notice in writing given to the person on whom the requirement is imposed and may be varied or revoked by a subsequent notice so given.

3

If a person refuses or wilfully neglects to furnish any information or produce any document which he has been required to furnish or produce by a notice under this section he shall be liable on summary conviction to a fine not exceeding F271level 3 on the standard scale.

4

If a person, in purporting to comply with a requirement of a notice under this section, knowingly or recklessly makes any false statement he shall be liable on summary conviction to a fine not exceeding F271level 5 on the standard scale.

127 Interpretation of ss. 122 to 126.

1

For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in England and Wales,—

F272a

he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

b

he has died and his estate falls to be administered in accordance with an order under section [F273421 of the Insolvency Act 1986]; or

c

where the employer is a company, a winding up order F274or an administration order is made or a resolution for voluntary winding up is passed with respect to it, or a receiver or manager of its undertaking is duly appointed, or possession is taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge F274or a [F273voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part].

2

For the purposes of sections 122 to 126, an employer shall be taken to be insolvent if, but only if, in Scotland,—

a

F275sequestration of his estate is awarded or he executes a trust deed for his creditors or enters into a composition contract;

b

he has died and a judicial factor appointed under section F276163 of the M35Bankruptcy (Scotland) Act 1913F27611A of the Judicial Factors (Scotland) Act 1889 is required by that section to divide his insolvent estate among his creditors; or

c

where the employer is a company, a winding-up order F274or an administration order is made or a resolution for voluntary winding up is passed with respect to it or a receiver of its undertaking is duly appointed F274or a [F273voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part ].

3

In sections 122 to 126—

“holiday pay” means—

a

pay in respect of a holiday actually taken; or

b

any accrued holiday pay which under the employee’s contract of employment would in the ordinary course have become payable to him in respect of the period of a holiday if his employment with the employer had continued until he became entitled to a holiday;

“occupational pension scheme” means any scheme or arrangement which provides or is capable of providing, in relation to employees in any description of employment, benefits (in the form of pensions or otherwise) payable to or in respect of any such employees on the termination of their employment or on their death or retirement;
F277“personal pension scheme” means any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect so as to provide benefits, in the form of pensions or otherwise, payable on death or retirement to or in respect of employees who have made arrangements with the trustees or managers of the scheme for them to become members of the scheme;

and any reference in those sections to the resources of F278a scheme is a reference to the funds out of which the benefits provided by the scheme are from time to time payable.

Part VIII Resolution of Disputes Relating to Employment

b

whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2B),

c

any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

d

whether there are other proceedings which might be heard concurrently but which are not proceedings to which subsection (2C) applies,

decides (at any stage of the proceedings) that the proceedings are to be heard in accordance with subsection (2A).

3

Schedule 9, which makes provision, among other things, with respect to proceedings before industrial tribunals, shall have effect.

4

Complaints, references F281applications and appeals to industrial tribunals shall be made in accordance with regulations made under F282. . . Schedule 9.

F2835

Regulations made under Schedule 9 may provide that in such circumstances as the regulations may specify any act required or authorised by the regulations to be done by an industrial tribunal may be done by the person specified in subsection (2A)(a) alone.

F2846

Where a Minister of the Crown so directs in relation to any proceedings on grounds of national security, the proceedings shall be heard and determined, and any act required or authorised by regulations made under Schedule 9 to be done by an industrial tribunal in relation to the proceedings shall be done, by the President of Industrial Tribunals (England and Wales) appointed in accordance with regulations made under subsection (1), or the President of Industrial Tribunals (Scotland) so appointed, alone.

C93129 Remedy for infringement of certain rights under this Act.

The remedy of an employee for infringement of any of the rights conferred on him by sections 8 and 53 and Parts II, III, V and VII shall, if provision is made for a complaint or for the reference of a question to an industrial tribunal, be by way of such complaint or reference and not otherwise.

130 Jurisdiction of referees to be exercised by tribunals.

1

There shall be referred to and determined by an industrial tribunal any question which by any statutory provision is directed (in whatsoever terms) to be determined by a referee or board of referees constituted under any of the statutory provisions specified in Schedule 10 or which is so directed to be determined in the absence of agreement to the contrary.

2

The transfer of any jurisdiction by this section shall not affect the principles on which any question is to be determined or the persons on whom the determination is binding, or any provision which requires particular matters to be expressly dealt with or embodied in the determination, or which relates to evidence.

131 Power to confer jurisdiction on industrial tribunals in respect of damages, etc., for breach of contract of employment.

F2851

The appropriate Minister may by order provide that proceedings in respect of—

a

any claim to which this section applies, or

b

any such claim of a description specified in the order,

may, subject to such exceptions (if any) as may be specified in the order, be brought before an industrial tribunal.

2

Subject to subsection (3), this section applies to any of the following claims, that is to say—

a

a claim for damages for breach of a contract of employment or any other contract connected with employment;

b

a claim for a sum due under such a contract;

c

a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract;

payments by employers to employees, under Part II F289 or V or section 53 F290. . .; or

F291bb

payments by employers to employees under sections 146 to 151 or 168 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992, or in pursuance of an award under section 192 of that Act;

c

payments by employers to employees, of a nature similar to, or for a purpose corresponding to the purpose of, such payments as are mentioned in paragraph (b) F292or (bb);

and to payments of remuneration in pursuance of a protective award under F293section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992.

2

The Secretary of State may by regulations make provision with respect to payments to which this section applies for all or any of the following purposes—

a

enabling the Secretary of State to recover from an employer, by way of total or partial recoupment of unemployment benefit or F294income support, a sum not exceeding the amount of the prescribed element of the monetary award or, in the case of a protective award, the amount of the remuneration;

b

requiring or authorising the tribunal to order the payment of such a sum, by way of total or partial recoupment of either benefit, to the Secretary of State instead of to the employee;

c

requiring the tribunal to order the payment to the employee of only the excess of the prescribed element of the monetary award over the amount of any unemployment benefit or F294income support shown to the tribunal to have been paid to the employee, and enabling the Secretary of State to recover from the employer, by way of total or partial recoupment of the benefit, a sum not exceeding that amount.

3

Without prejudice to subsection (2), regulations under that subsection may—

a

be so framed as to apply to all payments to which this section applies or one or more classes of those payments, and so as to apply both to unemployment benefit and F295income support or only to one of those benefits;

b

confer powers and impose duties on industrial tribunals, on F296a benefit officer within the meaning of the M38Supplementary Benefits Act 1976 and on insurance officers and other persons;

c

impose, on an employer to whom a monetary award or protective award relates, a duty to furnish particulars connected with the award and to suspend payments in pursuance of the award during any period prescribed by the regulations;

d

provide for an employer who pays a sum to the Secretary of State in pursuance of this section to be relieved from any liability to pay the sum to another person;

e

confer on an employee F297a right of appeal to a social security appeal tribunal against any decision of an adjudication officer as to the total or partial recoupment of income support in pursuance of the regulations;

f

provide for the proof in proceedings before industrial tribunals (whether by certificate or in any other manner) of any amount of unemployment benefit or F295income support paid to an employee; and

g

make different provision for different cases.

4

Where in pursuance of any regulations under subsection (2) a sum has been recovered by or paid to the Secretary of State by way of total or partial recoupment of unemployment benefit or F298income support, no sum shall be recoverable under F299Part III or V of the Social Security Administration Act 1992, and no abatement, payment or reduction shall be made by reference to the income support recouped.

5

Any amount found to have been duly recovered by or paid to the Secretary of State in pursuance of regulations under subsection (2) by way of total or partial recoupment of unemployment benefit shall be paid into National Insurance Fund.

6

In this section—

“monetary award” means the amount which is awarded, or ordered to be paid, to the employee by the tribunal or would be so awarded or ordered apart from any provision of regulations under this section;
“the prescribed element”, in relation to any monetary award, means so much of that award as is attributable to such matters as may be prescribed by regulations under subsection (2);
F300“unemployment benefit” means unemployment benefit under F301the M39Social Security Contributions and Benefits Act 1992.

Conciliation officers

133 General provisions as to conciliation officers. C94

1

The provisions of subsections (2) to (6) shall have effect in relation to industrial tribunal proceedings, or claims which could be the subject of tribunal proceedings,—

a

arising out of a contravention, or alleged contravention, of any of the following provisions of this Act, that is to say, sections 8, 12, 19, F30222A,. . . 29, 31, F30431A and 53; or

b

arising out of a contravention, or alleged contravention, F303. . . of a provision of any other Act specified by an order under subsection (7) as one to which this paragraph applies; or

c

which are proceedings F305. . . in respect of which an industrial tribunal has jurisdiction by virtue of an order under section 131; F306or

F307d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F308e

arising out of a contravention, or alleged contravention, of section 1(1) or (2) or section 2(1) or 3(4) of the Wages Act 1986.F309; or

F310f

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F311g

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C952

Where a complaint has been presented to an industrial tribunal, and a copy of it has been sent to a conciliation officer, it shall be the duty of the conciliation officer—

a

if he is requested to do so by the complainant and by the person against whom the complaint is presented, or

b

if, in the absence of any such request, the conciliation officer considers that he could act under this subsection with a reasonable prospect of success,

to endeavour to promote a settlement of the complaint without its being determined by an industrial tribunal.

C953

Where at any time—

a

a person claims that action has been taken in respect of which a complaint could be presented by him to an industrial tribunal, but

b

before any complaint relating to that action has been presented by him,

a request is made to a conciliation officer (whether by that person or by the person against whom the complaint could be made) to make his services available to them, the conciliation officer shall act in accordance with subsection (2) as if a complaint has been presented to an industrial tribunal.

C954

Subsections (2) and (3) shall apply, with appropriate modifications, to the presentation of a claim and the reference of a question to an industrial tribunal as they apply to the presentation of a complaint.

C955

In proceeding under subsection (2) or (3) a conciliation officer shall, where appropriate, have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.

C956

Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an industrial tribunal, except with the consent of the person who communicated it to that officer.

7

The Secretary of State may by order—

the conciliation officer shall in particular seek to promote the reinstatement or re-engagement of the complainant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable; but

b

where the complainant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, and the parties desire the conciliation officer to act under this section, he shall seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the complainant.

F3123

Where—

a

a person claims that action has been taken in respect of which a complaint could be presented by him under section 67, and

b

before any complaint relating to that action has been so presented, a request is made to a conciliation officer (whether by that person or by the employer) to make his services available to them,

the conciliation officer shall act in accordance with subsections (1) and (2) above as if a complaint had been presented.

4

In proceeding under subsections (1) to (3), a conciliation officer shall where appropriate have regard to the desirability of encouraging the use of other procedures available for the settlement of grievances.

5 Employment Appeal Tribunal

135 Employment Appeal Tribunal.

1

The Employment Appeal Tribunal established under section 87 of the M40Employment Protection Act 1975 shall continue in existence by that name F313

2

The Employment Appeal Tribunal (in this Act referred to as “the Appeal Tribunal”) shall consist of—

a

such number of judges as may be nominated from time to time by the Lord Chancellor from among the judges (other than the Lord Chancellor) of the High Court and the Court of Appeal;

b

at least one judge of the Court of Session nominated from time to time by the Lord President of that Court; and

c

such number of other members as may be appointed from time to time by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State.

3

The members of the Appeal Tribunal appointed under subsection (2)(c) shall be persons who appear to the Lord Chancellor and the Secretary of State to have special knowledge or experience of industrial relations, either as representatives of employers or as representatives of workers (within the meaning of F314the Trade Union and Labour Relations (Consolidation) Act 1992).

4

The Lord Chancellor shall, after consultation with the Lord President of the Court of Session, appoint one of the judges nominated under subsection (2) to be President of the Appeal Tribunal.

5

No judge shall be nominated a member of the Appeal Tribunal except with his consent.

6

The provisions of Schedule 11 shall have effect with respect to the Appeal Tribunal and proceedings before the Tribunal.

C96136 Appeals to Tribunal from industrial tribunals and Certification Officer.

1

An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts—

a

the M41Equal Pay Act 1970;

b

the M42Sex Discrimination Act 1975;

F315c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

d

the M43Race Relations Act 1976;

e

this Act.

F316f

the Wages Act 1986.

F317g

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3182

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3183

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

c

no application (other than one for leave under this section) shall be made by him in any proceedings in any industrial tribunal or in the Appeal Tribunal without the leave of the Appeal Tribunal.

3

A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

4

Leave for the institution or continuance of, or for the making of an application in, any proceedings in an industrial tribunal or before the Appeal Tribunal by a person who is the subject of a restricted proceedings order shall not be given unless the Appeal Tribunal is satisfied that the proceedings or application are not an abuse of the process of the tribunal in question and that there are reasonable grounds for the proceedings or application.

5

No appeal shall lie from a decision of the Appeal Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of a restriction of proceedings order.

6

A copy of a restriction of proceedings order shall be published in the London Gazette and in the Edinburgh Gazette.

Part IX Miscellaneous and Supplemental

Extension of employment protection legislation

C98 C99 C100137 Power to extend employment protection legislation. C97

1

Her Majesty may by Order in Council provide that—

a

the provisions of this Act; and

b

any legislation (that is to say any enactment of the Parliament of Northern Ireland and any provision made by or under a Measure of the Northern Ireland Assembly) for the time being in force in Northern Ireland which makes provision for purposes corresponding to any of the purposes of this Act,

shall, to such extent and for such purposes as may be specified in the Order, apply (with or without modification) to or in relation to any person in employment to which this section applies.

F3212

This section applies to employment for the purposes of—

a

any activities in the territorial waters of the United Kingdom; or

b

any activities which, if paragraphs (a) and (d) of subsection (6) of section 23 of the M45Oil and Gas (Enterprise) Act 1982 (application of civil law to certain offshore activities) were omitted, would nevertheless fall within subsection (2) of that section.

3

An Order in Council under subsection (1)—

a

may make different provision for different cases;

b

may provide that all or any of the enactments referred to in subsection (1), as applied by such an Order, shall apply to individuals whether or not they are British subjects and to bodies corporate whether or not they are incorporated under the law of any part of the United Kingdom (notwithstanding that the application may affect their activities outside the United Kingdom);

c

may make provision for conferring jurisdiction on any court or class of court specified in the Order, or on industrial tribunals, in respect of offences, causes of action or other matters arising in connection with employment to which this section applies;

d

without prejudice to the generality of subsection (1) or of paragraph (a), may provide that the enactments referred to in subsection (1), as applied by the Order, shall apply in relation to any person in employment for the purposes of such activities as are referred to in subsection (2) in any part of the areas specified in paragraphs (a) and (b) of that subsection;

e

may exclude from the operation of section 3 of the M46Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under the enactments referred to in subsection (1) in connection with employment to which this section applies;

f

may provide that such proceedings shall not be brought without such consent as may be required by the Order;

g

may, without prejudice to the generality of the power under subsection (1) to modify the enactments referred to in that subsection in their application for the purposes of this section, modify or exclude the operation of sections 141 and 144 or paragraph 14 of Schedule 13 or of any corresponding provision in any such Northern Irish legislation as is referred to in subsection (1)(b).

4

Any jurisdiction conferred on any court or tribunal under this section shall be without prejudice to jurisdiction exercisable apart from this section by that or any other court or tribunal.

5F322

Crown employment

138 Application of Act to Crown employment.

1

Subject to the following provisions of this section, Parts I F323. . ., II, IIIF324, V, VIII and this Part and section 53 shall have effect in relation to Crown employment and to persons in Crown employment as they have effect in relation to other employment and to other employees.

2

In this section, [F325subject to subsections (3) to (5),] “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment.

3

This section does not apply to service as a member of the naval, military or air forces of the Crown, F326, but does apply to employment by any association established for the purposes of F327Part VI of the M47Reserve Forces Act 1980

4

F328Part I (so far as it relates to itemised pay statements), Part II (except sections 22A to 22C and 31A), section 53 (apart from subsection (2A)), Part V (except so far as relating to a dismissal which is regarded as unfair by reason of section 57A, 59(1)(a) or 60) and Part VIII and this Part (so far as relating to any of those provisions) shall not have effect in relation to any Crown employment in respect of which there is a certificate issued by or on behalf of a Minister of the Crown certifying that employment of a description specified in the certificate, or the employment of a particular person so specified, is (or, at a time specified in the certificate, was) required to be excepted from this section for the purpose of safeguarding national security; and any document puproorting to be a certificate so issued shall be received in evidence and shall, unless the contrary is proved, be deemed to be such a certificate.

F3295

For the purposes of Parts I (so far as it relates to itemised pay statements), II, III (except section 44(3) and (4)), V, VII (except section 126(3) and (4)), VIII and this Part and section 53, none of the bodies referred to in Schedule 5 shall be regarded as performing functions on behalf of the Crown and accordingly employment by any such body shall not be Crown employment within the meaning of this section.

6

For the purposes of the application of the provisions of this Act in relation to employment by any such body as is referred to in subsection (5), any reference to redundancy shall be construed as a reference to the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 111(3), are treated as equivalent to redundancy in relation to such employment.

7

For the purposes of the application of the provisions of this Act in relation to Crown employment in accordance with subsection (1)—

a

any reference to an employee shall be construed as a reference to a person in Crown employment;

b

any reference to a contract of employment shall be construed as a reference to the terms of employment of a person in Crown employment;

c

any reference to dismissal shall be construed as a reference to the termination of Crown employment;

d

any reference to redundancy shall be construed as a reference to the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 111(3), are treated as equivalent to redundancy in relation to Crown employment;

e

the reference in paragraph 1(5)(c) of Schedule 9 to a person’s undertaking or any undertaking in which he works shall be construed as a reference to the national interest; and

f

any other reference to an undertaking shall be construed, in relation to a Minister of the Crown, as a reference to his functions or (as the context may require) to the department of which he is in charge and, in relation to a government department, officer or body, shall be construed as a reference to the functions of the department, officer or body or (as the context may require) to the department, officer or body.

8

Where the terms of employment of a person in Crown employment restrict his right to take part in—

a

certain political activities; or

b

activities which may conflict with his official functions,

nothing in section 29 shall require him to be allowed time off work for public duties connected with any such activities.

F37138A Application of Act to armed forces.

1

The provisions of this Act which apply, by virtue of section 138, to service as a member of the naval, military or air forces of the Crown are—

Part I;
in Part II, sections 19 to 22 and 31A;
Part III;
in Part IV, section 53;
Part V, except sections 57A F3857AA, and 80;
Part VIII; and
this Part.

2

Her Majesty may, by Order in Council,—

a

amend subsection (1) above by making additions to, or omissions from, the provisions for the time being specified in that subsection by an Order under this subsection; and

b

make any provision apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order.

3

Subject to subsection (5) below, modifications made under subsection (2) above may include provision precluding the making of a complaint or reference to any F39employment tribunal unless the person aggrieved has availed himself of the service procedures for the redress of complaints applicable to him.

4

Where modifications include the provision authorised by subsection (3) above the Order in Council shall also include provision designed to secure that the service procedures for the redress of complaints result in a determination, or what is to be treated under the Order as a determination, in sufficient time to enable a complaint or reference to be made to an F39employment tribunal.

5

No provision shall be made by virtue of subsection (3) above which has the effect of substituting, for any period specified as the normal period for a complaint or reference on any matter to an F39employment tribunal, a period longer than six months.

6

No recommendation shall be made to Her Majesty to make an Order in Council under subsection (2) above unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.

7

In this section—

“the normal period for a complaint or reference”, in relation to any matter within the jurisdiction of an F39employment tribunal, means the period specified in the relevant enactment as the period within which the complaint or reference must be made, disregarding any provision permitting an extension of that period at the discretion of the tribunal; and
“the service procedures for the redress of complaints” means the procedures, excluding those which relate to the making of a report on a complaint to Her Majesty, referred to in sections 180 and 181 of the M1Army Act 1955, sections 180 and 181 of the M2Air Force Act 1955 and section 130 of the M3Naval Discipline Act 1957.

F330138A Application of Act to armed forces.

1

The provisions of this Act which apply, by virtue of section 138, to service as a member of the naval, military or air forces of the Crown are—

Part I;
in Part II, sections 19 to 22 and 31A;
Part III;
in Part IV, section 53;
Part V, except sections 57A and 80;
Part VIII; and
this Part.

2

Her Majesty may, by Order in Council,—

a

amend subsection (1) above by making additions to, or omissions from, the provisions for the time being specified in that subsection by an Order under this subsection; and

b

make any provision apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order.

3

Subject to subsection (5) below, modifications made under subsection (2) above may include provision precluding the making of a complaint or reference to any industrial tribunal unless the person aggrieved has availed himself of the service procedures for the redress of complaints applicable to him.

4

5

No provision shall be made by virtue of subsection (3) above which has the effect of substituting, for any period specified as the normal period for a complaint or reference on any matter to an industrial tribunal, a period longer than six months.

6

7

In this section—

“the normal period for a complaint or reference”, in relation to any matter within the jurisdiction of an industrial tribunal, means the period specified in the relevant enactment as the period within which the complaint or reference must be made, disregarding any provision permitting an extension of that period at the discretion of the tribunal; and
“the service procedures for the redress of complaints” means the procedures, excluding those which relate to the making of a report on a complaint to Her Majesty, referred to in sections 180 and 181 of the M48Army Act 1955, sections 180 and 181 of the M49Air Force Act 1955 and section 130 of the M50Naval Discipline Act 1957.

House of Commons staff

139 Provisions as to House of Commons staff.

1

The provisions of Parts I F331. . ., II, IIIF332, V and VIII, and this Part and section 53 shall apply to relevant members of House of Commons staff as they apply to persons in Crown employment within the meaning of section 138 and accordingly for the purposes of the application of those provisions in relation to any such members—

a

any reference to an employee shall be construed as a reference to any such member;

b

any reference to a contract of employment shall be construed as including a reference to the terms of employment of any such member;

c

any reference to dismissal shall be construed as including a reference to the termination of any such member’s employment;

d

the reference in paragraph 1(5)(c) of Schedule 9 to a person’s undertaking or any undertaking in which he works shall be construed as a reference to the national interest or, if the case so requires, the interests of the House of Commons; and

e

any other reference to an undertaking shall be construed as a reference to the House of Commons.

2

Nothing in any rule of law or the law or practice of Parliament shall prevent a relevant member of the House of Commons staff from bringing a civil employment claim before the court or from bringing before an industrial tribunal proceedings of any description which could be brought before such a tribunal by any person who is not such a member.

3

In this section—

“relevant member of the House of Commons staff” means—

a

any person appointed by the House of Commons Commission (in this section referred to as the Commission) or employed in the refreshment department; and

b

any member of Mr. Speaker’s personal staff;

“civil employment claim” means a claim arising out of or relating to a contract of employment or any other contract connected with employment, or a claim in tort arising in connection with a person’s employment; and
“the court” means the High Court or the county court.

anything done by or in relation to his employer for the time being in respect of such employment before the change shall be so treated as having been done by or in relation to the person who is his employer for the time being after the change.

C1018

In subsection (7) “employer for the time being", in relation to a person who has ceased to be employed in or for the purposes of the House of Commons, means the person who was his employer immediately before he ceased to be so employed, except that where some other person would have been his employer for the time being if he had not ceased to be so employed, it means that other person.

C1019

If the House of Commons resolves at any time that any provision of subsections (3) to (6) should be amended in its application to any member of the staff of that House, Her Majesty may by Order in Council amend that provision accordingly.

F40 House of Lords staff

Annotations:

Amendments (Textual)

F40

S. 139A and cross heading inserted (30.11.1993) by 1993 c. 19, s. 49(1), Sch. 7 para.11; S.I. 1993/2503, art. 2(2), Sch.2

139AF397Provisions as to House of Lords staff.

1

The provisions of Parts I, II, III, V and VIII, and this Part and section 53 shall apply in relation to employment as a relevant member of the House of Lords staff as they apply to other employment.

2

Nothing in any rule of law or the law or practice of Parliament shall prevent a relevant member of the House of Lords staff from bringing a civil employment claim before the court or from bringing before an industrial tribunal proceedings of any description which could be brought before such a tribunal by a person who is not such a member.

3

For the purposes of the application of the enactments applied by subsection (1) in relation to a relevant member of the House of Lords staff—

a

b

any other reference to an undertaking shall be construed as a reference to the House of Lords.

4

Where the terms of his contract of employment restrict the right of a relevant member of the House of Lords staff to take part in—

a

certain political activities, or

b

activities which may conflict with his official functions,

nothing in section 29 shall require him to be allowed time off work for public duties connected with any such activities.

5

In this section—

“relevant member of the House of Lords staff” means any person who is employed under a contract of employment with the Corporate Officer of the House of Lords;
“civil employment claim” means a claim arising out of or relating to a contract of employment or any other contract connected with employment, or a claim in tort arising in connection with a person’s employment; and
“the court” means the High Court or the county court.

6

For the purposes of the application of the enactments applied by subsection (1) and of any civil employment claim in relation to a person continuously employed in or for the purposes of the House of Lords up to the time when he became so employed under a contract of employment with the Corporate Officer of the House of Lords, his employment shall not be treated as having been terminated by reason only of a change in his employer before or at that time.

Contracting out of provisions of Act

140 Restrictions on contracting out.

1

Except as provided by the following provisions of this section, any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports—

a

to exclude or limit the operation of any provision of this Act; or

b

to preclude any person from presenting a complaint to, or bringing any proceedings under this Act before, an industrial tribunal.

2

Subsection (1) shall not apply—

a

to any provision in a collective agreement excluding rights under section 12 if an order under section 18 is for the time being in force in respect of it;

b

F333c

to any provision in a dismissal procedures agreement excluding rights under section 54 if that provision is not to have effect unless an order under section 65 is for the time being in force in respect of it;

d

to any agreement to refrain from presenting a complaint under section 67, where in compliance with a request under section 134(3) a conciliation officer has taken action in accordance with that subsection;

e

to any agreement to refrain from proceeding with a complaint presented under section 67 where a conciliation officer has taken action in accordance with section 134(1) and (2);

f

to any provision in an agreement if an order under section 96 is for the time being in force in respect of it;

F334fa

to any agreement to refrain from instituting or continuing any proceedings before an industrial tribunal where the tribunal has jurisdiction in respect of the proceedings by virtue of an order under section 131;

F335fb

to any agreement to refrain from instituting or continuing any proceedings specified in section 133(1) (except (c)) or 134(1) before an industrial tribunal if the conditions regulating compromise agreements under this Act are satisfied in relation to the agree ment.

g

to any agreement to refrain from instituting or continuing any proceedings before an industrial tribunal where a conciliation officer has taken action in accordance with section 133(2) or (3);

h

to any provision of an agreement relating to dismissal from employment such as is mentioned in section 142(1) or (2).

F3363

The conditions regulating compromise agreements under this Act are that—

a

the agreement must be in writing;

b

the agreement must relate to the particular complaint;

c

the employee must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an industrial tribunal;

d

there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the employee in respect of loss arising in consequence of the advice;

e

the agreement must identify the adviser; and

f

the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

4

In subsection (3)—

“independent”, in relation to legal advice to the employee, means that it is given by a lawyer who is not acting in the matter for the employer or an associated employer; and
“qualified lawyer” means—

a

as respects proceedings in England and Wales—

i

a barrister, whether in practice as such or employed to give legal advice, or

ii

a solicitor of the Supreme Court who holds a practising certificate;

b

as respects proceedings in Scotland—

i

an advocate, whether in practice as such or employed to give legal advice, or

ii

a solicitor who holds a practising certificate.

Excluded classes of employment

C102141 Employment outside Great Britain.

1

Sections 1 to 4 and 49 to 51 do not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain F337unless—

a

the employee ordinarily works in Great Britain and the work outside Great Britain is for the same employer, or

b

the law which governs his contract of employment is the law of England and Wales or of Scotland.

C1032

Sections 8 and 53 and Parts II, III, F338and V do not apply to employment where under his contract of employment the employee ordinarily works outside Great Britain.

F3392

Part VII does not apply to employment where under his contract of employment the employee ordinarily works outside the territory of the Member States of the European Communities.

3

An employee shall not be entitled to a redundancy payment if on the relevant date he is outside Great Britain, unless under his contract of employment he ordinarily worked in Great Britain.

4

An employee who under his contract of employment ordinarily works outside Great Britain shall not be entitled to a redundancy payment unless on the relevant date he is in Great Britain in accordance with instruction given to him by his employer.

5

For the purpose of subsection (2), a person employed to work on board a ship registered in the United Kingdom (not being a ship registered at a port outside Great Britain) shall, unless—

a

the employment is wholly outside Great Britain, or

b

he is not ordinarily resident in Great Britain,

be regarded as a person who under his contract ordinarily works in Great Britain.

C104142 Contracts for a fixed term.

1

Section 54 does not apply to dismissal from employment under a contract for a fixed term of F340one year or more, where the dismissal consists only of the expiry of that term without its being renewed, if before the term so expires the employee has agreed in writing to exclude any claim in respect of rights under that section in relation to that contract.

2

An employee employed under a contract of employment for a fixed term of two years or more entered into after 5th December 1965 shall not be entitled to a redundancy payment in respect of the expiry of that term without its being renewed (whether by the employer or by an associated employer of his), if before the term so expires he has agreed in writing to exclude any right to a redundancy payment in that event.

3

Such an agreement as is mentioned in subsection (1) or (2) may be contained either in the contract itself or in a separate agreement.

4

Where an agreement under subsection (2) is made during the currency of a fixed term, and that term is renewed, the agreement under that subsection shall not be construed as applying to the term as renewed, but without prejudice to the making of a further agreement under that subsection in relation to the term so renewed.

F41143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

144 Mariners.

F3411

Sections 1 to 4 and 49 to 51 do not apply to a person employed as a seaman in a ship registered in the United Kingdom under a crew agreement the provisions and form of which are of a kind approved by the Secretary of State.

2

Sections 8 and 53 and Parts II, III and V to VII do not apply to employment as master or as a member of the crew of a fishing vessel where the employee is remunerated only by a share in the profits or gross earnings of the vessel.

3

Section 141(3) and (4) do not apply to an employee, and section 142(2) does not apply to a contract of employment, if the employee is employed as a master or seaman in a British ship and is ordinarily resident in Great Britain.

4

Sections 8, 29, 31, 122 and 123 do not apply to employment as a merchant seaman.

5

Employment as a merchant seaman does not include employment in the fishing industry or employment on board a ship otherwise than by the owner, manager or charterer of that ship except employment as a radio officer, but, save as aforesaid, it includes employment as master or a member of the crew of any ship and as a trainee undergoing training for the sea service, and employment in or about a ship in port by the owner, manager or charterer of the ship to do work of the kind ordinarily done by a merchant seaman on a ship while it is in port.

F42145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c

during which there is no contract of employment but which, by virtue of paragraph 9(1) of Schedule 13, counts in computing a period of continuous employment.

7

An employee whose relations with his employer are governed by a contract of employment which normally involves employment for eight hours or more, but less than sixteen hours, weekly shall nevertheless, if he has been continuously employed for a period of five years or more be treated for the purposes of subsection (4) as if his contract normally involved employment for sixteen hours or more weekly.

F3478

References in subsections (4) to (7) to weeks are to weeks within the meaning of Schedule 13.

F348146A National Security.

1

Where in the opinion of any Minister of the Crown the disclosure of any information would be contrary to the interests of national security—

a

nothing in any of the provisions to which this section applies shall require any person to disclose the information, and

b

no person shall disclose the information in any proceedings in any court or tribunal relating to any of those provisions.

2

This section applies to—

a

Part I so far as it relates to employment particulars,

b

sections 22A to 22C and section 31A,

such other matters as he thinks relevant.

3

If on a review under this section the Secretary of State determines that, having regard to the considerations mentioned in subsection (2), any of those limits should be varied, he shall prepare and lay before each House of Parliament the draft of an order giving effect to his decision.

4

Where a draft of an order under this section is approved by resolution of each House of Parliament the Secretary of State shall make an order in the form of the draft.

5

If, following the completion of an annual review under this section, the Secretary of State determines that any of the limits referred to in subsection (1) shall not be varied, he shall lay before each House of Parliament a report containing a statement of his reasons for that determination.

6

The Secretary of State may at any time, in addition to the annual review provided for in subsection (1), conduct a further review of the limits mentioned in subsection (1) so as to determine whether any of those limits should be varied, and subsections (2) to (4) shall apply to such a review as if it were a review under subsection (1).

149 General power to amend Act.

1

Subject to the following provisions of this section, the Secretary of State may by order—

a

provide that any enactment contained in this Act which is specified in the order shall not apply to persons or to employments of such classes as may be prescribed in the order;

b

provide that any such enactment shall apply to persons or employments of such classes as may be prescribed in the order subject, except in relation to section 54 (but without prejudice to paragraph (a)), to such exceptions and modifications as may be so prescribed;

c

vary, or exclude the operation of, any of the following provisions of this Act, that is to say, sections F34913(2), 20(2), 49(4A),F35053(2), 64(1), F351. . . 99, 141(2) and (5) F352144(1), (2), (4) and (5), F353 and 146 F352(4) to (7);

F354d

add to, vary or delete any of the provisions of Schedule 5.

2

Subsection (1) does not apply to the following provisions of this Act, namely, sections F352, 52, 55, 57, F35557A,. . . 59, 62, 63, 65, 66, 67, F35573(6C) and (6D),F356. . .75 F35575A(7) and (8),. . ., 80, 103 to 120, 128, 134, 141(1) F357, 142(1) and 151 and Schedules 3, 9 and 13, and, in addition, paragraph (b) of subsection (1) does not apply to sections 1 to 6 and 49 to 51 F358

F3592A

The Secretary of State may by order provide that, subject to any such modifications and exceptions as may be prescribed in the order, sections 22A to 22C (and any other provisions of this Act so far as relating to those sections) shall apply to such descriptions of persons other than employees as may be prescribed in the order as they apply to employees (but as if references to their employer were references to such person as may be so prescribed).

3

The provisions of this section are without prejudice to any other power of the Secretary of State to amend, vary or repeal any provision of this Act or to extend or restrict its operation in relation to any person or employment.

4

No order under F360this section, other than one to which subsection (5) applies, shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

F3615

This subsection applies to an order under subsection (1)(b) which specifies only provisions contained in Part VI.

C107150 Death of employee or employer.

Schedule 12 shall have effect for the purpose of supplementing and modifying the provisions of Part I (so far as it relates to itemised pay statements), section 53 and Parts II, III, and V to VII as respects the death of an employee or employer.

F363151F362 Computation of period of continuous employment. C108

C1091

References in any provision of this Act to a period of continuous employment are, except where provision is expressly made to the contrary, to a period computed in accordance with the provisions of this section and Schedule 13; and in any such provision which refers to a period of continuous employment expressed in months or years a month means a calendar month and a year means a year of twelve calendar months.

C1092

In computing an employee’s period of continuous employment any question arising as to—

a

whether the employee’s employment is of a kind counting towards a period of continuous employment, or

b

whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,

shall be determined in accordance with Schedule 13 (that is to say, week by week), but the length of an employee’s period of employment shall be computed in months and years of twelve months in accordance with the following rules.

3

Subject to the following provisions of this section, an employee’s period of continuous employment for the purposes of any provision of this Act begins with the day on which he starts work and ends with the day by reference to which the length of his period of continuous employment falls to be ascertained for the purposes of the provision in question.

4

For the purposes of section 81 and Schedule 4 an employee’s period of continuous employment shall be treated as beginning on his eighteenth birthday if that date is later than the starting date referred to in subsection (3).

5

If an employee’s period of continuous employment includes one or more periods which, by virtue of any provision of Schedule 13, do not count in computing the length of the period but do not break continuity, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period or, as the case may be, by the aggregate number of days falling within those periods.

6

The number of days falling within such an intervening period is—

a

in the case of a period to which paragraph 14(3) of Schedule 13 applies, seven days for each week within that sub-paragraph;

b

in the case of a period to which paragraph 15(2) or (4) of that Schedule applies, the number of days between the last working day before the strike or lock-out and the day on which work was resumed;

c

in the case of a period to which paragraph 16(1) of that Schedule applies, the number of days between the employee’s last day of employment before service under Part I of the M52National Service Act 1948 and the day on which he resumed employment in accordance with Part II of that Act.

152 Calculation of normal working hours and a week’s pay.

Schedule 14 shall have effect for the purposes of this Act for calculating the normal working hours and the amount of a week’s pay of any employee.

153 Interpretation.

1

In this Act, except so far as the context otherwise requires—

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly;
“business” includes a trade or profession and includes any activity carried on by a body of persons, whether corporate or unincorporate;
F375“collective agreement” has the meaning given by F376section 178(1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992;
“confinement” means the birth of a living child or the birth of a child whether living or dead after twenty-eight weeks of pregnancy;
“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;
“dismissal procedures agreement” means an agreement in writing with respect to procedures relating to dismissal made by or on behalf of one or more independent trade unions and one or more employers or employers’ associations;
“effective date of termination” has the meaning given by section 55(4) F377to (6);
C112“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;
“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed;
“employers’ association” has the same meaning as it has for the purposes of F376the Trade Union and Labour Relations (Consolidation) Act 1992;
F378“employer’s payment” has the meaning given by section 106(1A) and (1B);
“employment”, except for the purposes of sections 111 to 115, means employment under a contract of employment;
“expected week of confinement” means the week, beginning with midnight between Saturday and Sunday, in which it is expected that confinement will take place;
“government department”, except in section 138 and paragraph 19 of Schedule 13, includes a Minister of the Crown;
“guarantee payment” has the meaning given by section 12(1);
F379“independent trade union” means a trade union which—

a

is not under the domination or control of an employer or a group of employers or of one or more employers’ associations; and

b

is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control;

and, in relation to a trade union, “independent” and “independence” shall be construed accordingly;

“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed;
F380 F380 F380“notice of intention to claim” has the meaning given by section 88;
“notified day of return” has the meaning given by section 47(1) and (8);
“official”, in relation to a trade union, has F376the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992;
“original contract of employment”, in relation to an employee who is absent from work wholly or partly because of pregnancy or confinement, means the contract under which she worked immediately before the beginning of her absence or, if she entered into that contract during her pregnancy by virtue of section 60(2) or otherwise by reason of her pregnancy, the contract under which she was employed immediately before she entered into the later contract or, if there was more than one later contract, the first of the later contracts;
“position”, in relation to an employee, means the following matters taken as a whole, that is to say, his status as an employee, the nature of his work and his terms and conditions of employment;
F381“redundancy payment” has the meaning given by section 81(1);
F382“relevant date”, for the purposes of the provisions of this Act which relate to redundancy payments, has the meaning given by section 90;
“renewal” includes extension, and any reference to renewing a contract or a fixed term shall be construed accordingly;
“statutory provision” means a provision, whether of a general or a special nature, contained in, or in any document made or issued under, any Act, whether of a general or special nature;
F383“successor”, in relation to the employer of an employee, means (subject to subsection (4A) below) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking or of part of the undertaking for the purposes of which the employee was employed, has become the owner of the undertaking or of that part of it, as the case may be;
“trade dispute” has the meaning given by F376section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992;
“trade union” has the meaning given by F376section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992;
F384“week” means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day, and in relation to any other employee, a week ending with Saturday.

2

References in this Act to dismissal by reason of redundancy, and to cognate expressions, shall be construed in accordance with section 81.

3

In sections 33, 47, 56, 61 and 86 and Schedule 2, except where the context otherwise requires, “to return to work” means to return to work in accordance with section 45(1), and cognate expressions shall be construed accordingly.

C1134

For the purposes of this Act, any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and the expression “associated employer" shall be construed accordingly.

F3854A

The definition of “successor” in subsection (1) above has effect (subject to the necessary modifications) in relation to a case where—

a

the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

b

the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons.

5

F386Subject to section 141(1)(b), for the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

6

In this Act, except where otherwise indicated—

a

a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered, and

b

a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered, and

c

a reference in a section, subsection or Schedule to a numbered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered, and

d

a reference to any provision of an Act (including this Act) includes a Schedule incorporated in the Act by that provision.

7

Except so far as the context otherwise requires, any reference in this Act to an enactment shall be construed as a reference to that enactment as amended or extended by or under any other enactment, including this Act.

153 Interpretation.

1

In this Act, except so far as the context otherwise requires—

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly;
“business” includes a trade or profession and includes any activity carried on by a body of persons, whether corporate or unincorporate;
F364“collective agreement” has the meaning given by F365section 178(1) and (2) of the Trade Union and Labour Relations (Consolidation) Act 1992;
“confinement” means the birth of a living child or the birth of a child whether living or dead after twenty-eight weeks of pregnancy;
“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;
“dismissal procedures agreement” means an agreement in writing with respect to procedures relating to dismissal made by or on behalf of one or more independent trade unions and one or more employers or employers’ associations;
“effective date of termination” has the meaning given by section 55(4) F366to (6);
C110“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;
“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed;
“employers’ association” has the same meaning as it has for the purposes of F365the Trade Union and Labour Relations (Consolidation) Act 1992;
F367“employer’s payment” has the meaning given by section 106(1A) and (1B);
“employment”, except for the purposes of sections 111 to 115, means employment under a contract of employment;
“expected week of confinement” means the week, beginning with midnight between Saturday and Sunday, in which it is expected that confinement will take place;
“government department”, except in section 138 and paragraph 19 of Schedule 13, includes a Minister of the Crown;
“guarantee payment” has the meaning given by section 12(1);
F368“independent trade union” means a trade union which—

a

is not under the domination or control of an employer or a group of employers or of one or more employers’ associations; and

b

and, in relation to a trade union, “independent” and “independence” shall be construed accordingly;

“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed;
F369 F369 F369“notice of intention to claim” has the meaning given by section 88;
“notified day of return” has the meaning given by section 47(1) and (8);
“official”, in relation to a trade union, has F365the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992;
“original contract of employment”, in relation to an employee who is absent from work wholly or partly because of pregnancy or confinement, means the contract under which she worked immediately before the beginning of her absence or, if she entered into that contract during her pregnancy by virtue of section 60(2) or otherwise by reason of her pregnancy, the contract under which she was employed immediately before she entered into the later contract or, if there was more than one later contract, the first of the later contracts;
“position”, in relation to an employee, means the following matters taken as a whole, that is to say, his status as an employee, the nature of his work and his terms and conditions of employment;
F370“redundancy payment” has the meaning given by section 81(1);
F371“relevant date”, for the purposes of the provisions of this Act which relate to redundancy payments, has the meaning given by section 90;
“renewal” includes extension, and any reference to renewing a contract or a fixed term shall be construed accordingly;
“statutory provision” means a provision, whether of a general or a special nature, contained in, or in any document made or issued under, any Act, whether of a general or special nature;
F372“successor”, in relation to the employer of an employee, means (subject to subsection (4A) below) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking or of part of the undertaking for the purposes of which the employee was employed, has become the owner of the undertaking or of that part of it, as the case may be;
“trade dispute” has the meaning given by F365section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992;
“trade union” has the meaning given by F365section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992;
F373“week” means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day, and in relation to any other employee, a week ending with Saturday.

2

References in this Act to dismissal by reason of redundancy, and to cognate expressions, shall be construed in accordance with section 81.

3 C1114

F3744A

The definition of “successor” in subsection (1) above has effect (subject to the necessary modifications) in relation to a case where—

a

b

as it has effect where the previous owner and the new owner are wholly different persons.

5

For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

6

In this Act, except where otherwise indicated—

a

a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered, and

b

a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered, and

c

a reference in a section, subsection or Schedule to a numbered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered, and

d

a reference to any provision of an Act (including this Act) includes a Schedule incorporated in the Act by that provision.

7 154 Orders, rules and regulations.

1

Any power conferred by any provision of this Act to make an order (other than an Order in Council F387) or to make rules or regulations shall be exercisable by statutory instrument.

2

Any statutory instrument made under any power conferred by this Act to make an Order in Council or other order or to make rules or regulations, except—

a

an instrument required to be laid before Parliament in draft; and

b

an order under section 18,

shall be subject to annulment in pursuance of a resolution of either House of Parliament.

3

Any power conferred by this Act which is exercisable by statutory instrument shall include power to make such incidental, supplementary or transitional provisions as appear to the authority exercising the power to be necessary or expedient.

4

An order made by statutory instrument under any provision of this Act may be revoked or varied by a subsequent order made under that provision.

This subsection does not apply to an order under F388section 65, 66 or 96.

155 Offences by bodies corporate.

1

Where an offence under section F389126 committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

2

Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

156 Payments into the Consolidated Fund.

1 F3902

There shall be paid out of F391the National Insurance Fund into the Consolidated Fund sums equal to the amount of any expenses incurred—

a

by the Secretary of State in consequence of Part VI, except expenses incurred in the payment of sums in accordance with any such arrangements as are mentioned in section 111(3);

b

by the Secretary of State (or by persons acting on his behalf) in exercising his functions under sections 122 to 126.

3

There shall be paid out of F391the National Insurance Fund into the Consolidated Fund such sums as the Secretary of State may estimate in accordance with directions given by the Treasury to be the amount of any expenses incurred by any government department other than the Secretary of State in consequence of the provisions of F392sections 106 to 108.

157 Northern Ireland.

1

If provision is made by Northern Irish legislation (that is to say by or under a Measure of the Northern Ireland Assembly) for purposes corresponding to any of the purposes of this Act, except F393sections 1 to 6 and 49 to 51, the Secretary of State may, with the consent of the Treasury, make reciprocal arrangements with the appropriate Northern Irish authority for co-ordinating the relevant provisions of this Act with the corresponding provisions of the Northern Irish legislation, so as to secure that they operate, to such extent as may be provided by the arrangements, as a single system.

2 F3943

The Secretary of State may make regulations for giving effect in Great Britain to any such arrangements, and any such regulations may make different provision for different cases, and may provide that the relevant provisions of this Act shall have effect in relation to persons affected by the arrangements subject to such modifications and adaptations as may be specified in the regulations, including provision—

a

for securing that acts, omissions and events having any effect for the purposes of the Northern Irish legislation shall have a corresponding effect for the purposes of this Act (but not so as to confer a right to double payment in respect of the same act, omission or event); and

b

for determining, in cases where rights accrue both under this Act and under the Northern Irish legislation, which of those rights shall be available to the person concerned.

4

In this section “the appropriate Northern Irish authority” means such authority as may be specified in that behalf in the Northern Irish legislation.

158 The Isle of Man.

1

If an Act of Tynwald is passed for purposes similar to the purposes of Part VI, the Secretary of State may, with the consent of the Treasury, make reciprocal arrangements with the appropriate Isle of Man authority for co-ordinating the provisions of Part VI with the corresponding provisions of the Act of Tynwald so as to secure that they operate, to such extent as may be provided by the arrangements, as a single system.

2

For the purpose of giving effect to any such arrangements, the Secretary of State shall have power, in conjunction with the appropriate Isle of Man authority, to make any necessary financial adjustments between F395the National Insurance Fund and any fund established under the Act of Tynwald.

3

The Secretary of State may make regulations for giving effect in Great Britain to any such arrangements, and any such regulations may provide that Part VI shall have effect in relation to persons affected by the arrangements subject to such modifications and adaptations as may be specified in the regulations, including provision—

a

for securing that acts, omissions and events having any effect for the purposes of the Act of Tynwald shall have a corresponding effect for the purposes of Part VI (but not so as to confer a right to double payment in respect of the same act, omission or event); and

b

for determining, in cases where rights accrue both under this Act and under the Act of Tynwald, which of those rights shall be available to the person concerned.

4

In this section “the appropriate Isle of Man authority” means such authority as may be specified in that behalf in an Act of Tynwald.

159 Transitional provisions, savings, consequential amendments and repeals.

1

The transitional provisions and savings in Schedule 15 shall have effect but nothing in that Schedule shall be construed as prejudicing F396sections 16(1) and 17(2)(a) of the M53Interpretation Act 1978 (effect of repeals).

C1142

The enactments specified in Schedule 16 shall have effect subject to the amendments specified in that Schedule.

C1143

The enactments specified in the first column of Schedule 17 are hereby repealed to the extent specified in column 3 of that Schedule.

160 Citation, commencement and extent.

1

This Act may be cited as the Employment Protection (Consolidation) Act 1978.

2

This Act, except section 139(2) to (9) and the repeals in section 122 of the M54Employment Protection Act 1975 provided for in Schedule 17 to this Act, shall come into force on 1st November 1978, and section 139(2) to (9) and those repeals shall come into force on 1st January 1979.

3

This Act, except sections 137 and 157 and paragraphs 12 and 28 of Schedule 16, shall not extend to Northern Ireland.

SCHEDULES

SCHEDULE 1 Provisions Leading to Suspension on Medical Grounds

Section 19.

F3981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40413

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F405The Control of Lead at Work Regulations 1980.	F405S.I. 1980/1248,	F405Reg. 16.
F406The Ionising Radiations Regulations 1985.	F406S.I. 1985/1333,	F406Reg. 16.
F407The Control of Substances Hazardous to Health Regulations 1988.	F407S.I. 1988/1657,	F407reg. 11.

SCHEDULE 2 Supplementary Provisions Relating to Maternity

Section 33.

Part I Unfair Dismissal

Introductory

1

References in this Part to provisions of this Act relating to unfair dismissal are references to those provisions as they apply by virtue of section 56.

Adaptation of unfair dismissal provisions

2

1

Section 57 shall have effect as if for subsection (3) there were substituted the following subsection:—

3
Where the employer has fulfilled the requirements of subsection (1), then, F408subject to F409sections 57A to 61, and to sections 152, 153 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 (provisions as to dismissal on ground of trade union membership or activities or in connection with industrial action), the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether F410in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer would have been acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee if she had not been absent from work; and that question shall be determined in accordance with equity and substantial merits of the case.

2

If in the circumstances described in section 45(3) no offer is made of such alternative employment as is referred to in that subsection, then the dismissal which by virtue of section 56 is treated as taking place shall, notwithstanding anything in section 57 F411. . ., be treated as an unfair dismissal for the purposes of Part V of this Act.

3

The following references shall be construed as references to the notified day of return, that is to say—

a

references in Part V of this Act to the effective date of termination;

b

references in sections 69 and 70 to the date of termination of employment.

4

The following provisions of this Act shall not apply, that is to say, sections 55, F411. . ., 64(1), 65, 66, 73(5) and (6), 141(2), 142(1), F412and 144(2), paragraph 11(1) of Schedule 13, paragraphs 7(1)(f) to (i) and (2) and 8(3) of Schedule 14 and paragraph 10 of Schedule 15.

5

For the purposes of Part II of Schedule 14 as it applies for the calculation of a week’s pay for the purposes of section 71 or 73, the calculation date is the last day on which the employee worked under the original contract of employment.

Part II Redundancy Payments

Introductory

3

References in this Part to provisions of this Act relating to redundancy are references to those provisions as they apply by virtue of section 86.

Adaptation of redundancy payments provisions

4

1

References in Part VI of this Act shall be adapted as follows, that is to say—

a

references to the relevant date, wherever they occur, shall be construed, except where the context otherwise requires, as references to the notified day of return;

b

references in sections 82(4) and 84(1) to a renewal or re-engagement taking effect immediately on the ending of employment under the previous contract or after an interval of not more than four weeks thereafter, shall be construed as references to a renewal or re-engagement taking effect on the notified day of return or not more than four weeks after that day; and

c

references in section 84(3) to the provisions of the previous contract shall be construed as references to the provisions of the original contract of employment.

2

Nothing in section 86 shall prevent an employee from being treated, by reason of the operation of section 84(1), as not having been dismissed for the purposes of Part VI of this Act.

3

The following provisions of this Act shall not apply, that is to say, sections 81(1)(b), 82(1) and (2), 83(1) and (2), 85, 87 to 89, 90(3), 92, 93, 96, 110, 144(2), F413and 150, paragraph 4 of Schedule 4, Schedule 12 and paragraphs 7(1)(j) and (k) and 8(4) of Schedule 14.

4

For the purposes of Part II of Schedule 14 as it applies for the calculation of a week’s pay for the purposes of Schedule 4, the calculation date is the last day on which the employee worked under the original contract of employment.

Prior redundancy

5

If, in proceedings arising out of a failure to permit an employee to return to work, the employer shows—

a

that the reason for the failure is that the employee is redundant; and

b

that the employee was dismissed or, had she continued to be employed by him, would have been dismissed, by reason of redundancy during her absence on a day earlier than the notified day of return and falling after the beginning of the eleventh week before the expected week of confinement,

then, for the purposes of Part VI of this Act the employee—

i

shall not be treated as having been dismissed with effect from the notified day of return; but

ii

shall, if she would not otherwise be so treated, be treated as having been continuously employed until that earlier day and as having been dismissed by reason of redundancy with effect from that day.

Part III General

Dismissal during period of absence

6

1

This paragraph applies to the dismissal of an employee who is under this Act entitled to return to work and whose contract of employment continues to subsist during the period of her absence but who is dismissed by her employer during that period after the beginning of the eleventh week before the expected week of confinement.

2

For the purposes of sub-paragraph (1), an employee shall not be taken to be dismissed during the period of her absence if the dismissal occurs in the course of the employee’s attempting to return to work in accordance with her contract in circumstances in which section 48 applies.

3

In the application of Part V of this Act to a dismissal to which this paragraph applies, the following provisions shall not apply, that is to say, sections F414. . . , 64, 65, 66, 141(2), F415and 144(2).

4

Any such dismissal shall not affect the employee’s right to return to work, but—

a

compensation in any unfair dismissal proceedings arising out of that dismissal shall be assessed without regard to the employee’s right to return; and

b

that right shall be exercisable only on her repaying any redundancy payment or compensation for unfair dismissal paid in respect of that dismissal, if the employer requests such repayment.

Power to amend or modify

7

1

The Secretary of State may by order amend the provisions of this Schedule and section 48 or modify the application of those provisions to any description of case.

2

No order under this paragraph shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

SCHEDULE 3 Rights of Employee in Period of Notice

Section 50.

Preliminary

1

In this Schedule the “period of notice” means the period of notice required by section 49(1) or, as the case may be, section 49(2).

Employments for which there are normal working hours

2

1

If an employee has normal working hours under the contract of employment in force during the period of notice, and if during any part of those normal working hours—

a

the employee is ready and willing to work but no work is provided for him by his employer; or

b

the employee is incapable of work because of sickness or injury; or

c

the employee is absent from work in accordance with the terms of his employment relating to holidays.

4

Where the notice was given by the employee, the employer’s liability under this paragraph shall not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

Sickness or industrial injury benefit

4

1

The following provisions of this paragraph shall have effect where the arrangements in force relating to the employment are such that—

a

payments by way of sick pay are made by the employer to employees to whom the arrangements apply, in cases where any such employees are incapable of work because of sickness or injury, and

b

in calculating any payment so made to any such employee an amount representing, or treated as representing, sickness benefit or industrial injury benefit is taken into account, whether by way of deduction or by way of calculating the payment as a supplement to that amount.

2

If during any part of the period of notice the employee is incapable of work because of sickness or injury, and—

a

one or more payments, by way of sick pay are made to him by the employer in respect of that part of the period of notice, and

b

in calculating any such payment such an amount as is referred to in sub-paragraph (1)(b) is taken into account as therein mentioned,

then for the purposes of this Schedule the amount so taken into account shall be treated as having been paid by the employer to the employee by way of sick pay in respect of that part of that period, and shall go towards meeting the liability of the employer under paragraph 2 or paragraph 3 accordingly.

Absence on leave granted at request of employee

5

The employer shall not be liable under the foregoing provisions of this Schedule to make any payment in respect of a period during which the employee is absent from work with the leave of the employer granted at the request of the employee (including any period of time off taken in accordance with F418section 29, 31 or 31A of this Act or section 168 or 170 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Notice given before a strike

6

No payment shall be due under this Schedule in consequence of a notice to terminate a contract given by an employee if, after the notice is given and on or before the termination of the contract, the employee takes part in a strike of employees of the employer.

In this paragraph “strike” has the meaning given by paragraph 24 of Schedule 13.

Termination of employment during period of notice

7

1

If, during the period of notice, the employer breaks the contract of employment, payments received under this Schedule in respect of the part of the period after the breach shall go towards mitigating the damages recoverable by the employee for loss of earnings in that part of the period of notice.

2

If, during the period of notice, the employee breaks the contract and the employer rightfully treats the breach as terminating the contract, no payment shall be due to the employee under this Schedule in respect of the part of the period of notice falling after the termination of the contract.

C115 C116 C117SCHEDULE 4 Calculation of Redundancy Payments

Section 81.

Annotations:

Modifications etc. (not altering text)

C115

Sch. 4 modified by S.I. 1983/1160, art. 3, Sch. 2 para. 5

C116

Sch. 4 modified by S.I. 1986/379, art. 3 and Education Reform Act 1988 (c. 40, SIF 41:1), ss. 178(2)(b), 231(7), 235(6)

C117

Sch. 4 modified (13.1.1994) by S.I. 1993/3167, art. 3, Sch. 2 para.4

Sch. 4 modified (3.4.1995) by 1994 c. 19, s. 44(4) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2); S.I. 1995/852, art. 7, Sch. 3

1

The amount of a redundancy payment to which an employee is entitled in any case shall, subject to the following provisions of this Schedule, be calculated by reference to the period, ending with the relevant date, during which he has been continuously employed.

2

Subject to paragraphs 3 and 4, the amount of the redundancy payment shall be calculated by reference to the period specified in paragraph 1 by starting at the end of that period and reckoning backwards the number of years of employment falling within that period, and allowing—

a

one and a half weeks’ pay for each such year of employment F419in which the employee was not below the age of forty-one;

b

one week’s pay for each such year of employment (not falling within the preceding sub-paragraph) F419in which the employee was not below the age of twenty-two; and

c

half a week’s pay for each such year of employment not falling within either of the preceding sub-paragraphs.

3

Where, in reckoning the number of years of employment in accordance with paragraph 2, twenty years of employment have been reckoned, no account shall be taken of any year of employment earlier than those twenty years.

4

1

Where in the case of an employee the relevant date is after the specified anniversary, the amount of the redundancy payment, calculated in accordance with the preceding provisions of this Schedule, shall be reduced by the appropriate fraction.

2

In this paragraph F420“the specified anniversary”, in relation to an employee, means the sixty-fourth anniversary of the day of his birth, and “the appropriate fraction” means the fraction of which—

a

the numerator is the number of whole months, reckoned from the specified anniversary, in the period beginning with that anniversary and ending with the relevant date, and

b

the denominator is twelve.

5

For the purposes of any provision contained in Part VI whereby an industrial tribunal may determine that an employer shall be liable to pay to an employee either—

a

the whole of the redundancy payment to which the employee would have been entitled apart from another provision therein mentioned, or

b

such part of that redundancy payment as the tribunal thinks fit,

the preceding provisions of this Schedule shall apply as if in those provisions any reference to the amount of a redundancy payment were a reference to the amount of redundancy payment to which the employee would have been so entitled.

6

The preceding provisions of this Schedule shall have effect without prejudice to the operation of any regulations made under section 98 whereby the amount of a redundancy payment, or part of a redundancy payment, may be reduced.

7F421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F44SCHEDULE 5

Annotations:

Amendments (Textual)

F44

Sch. 5 repealed (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 66(2), Sch. 10

1

A Regional Health Authority, F422District Health Authority F423Family Practitioner Committee, preserved Board (within the meaning of section 15(6) of the M55National Health Service Reorganisation Act 1973), special health authority, Health Board or the Common Services Agency for the Scottish Health Service.

2

The Dental Estimates Board.

3

Any joint committee constituted under F424section 2(11) of the M56National Health Service (Scotland) Act 1978.

4

The Public Health Laboratory Service Board.

F4255

A State Hospital Management Committee.

F45SCHEDULE 6

Annotations:

Amendments (Textual)

F45

Sch. 6 repealed by Employment Act 1989 (c. 38, SIF 43:1), ss. 17(6), 29(4)(6), Sch. 7 Pt. II, Sch. 9 para. 4(1)

SCHEDULE 7 Calculation of Payments to Employees out of Redundancy Fund

Section 106.

1

Where the employer’s payment is a redundancy payment, the sum referred to in section 106(2) is a sum equal to the amount of that payment.

2

Where, in a case falling within F426section 106(1B), the employer’s payment is part of a redundancy payment, the sum referred to in section 106(2) is a sum equal to the amount of that part of the payment.

F4272

1

Where the employer’s payment is not a redundancy payment or part of a redundancy payment, the sum referred to in section 106(2) is a sum equal to—

a

the amount of the employers’ payment, or

b

the amount of the relevant redundancy payment, whichever is less.

2

The reference in sub-paragraph (1)(b) to the amount of the relevant redundancy payment is a reference to the amount of the redundancy payment which the employer would have been liable to pay to the employee if—

a

the order in force in respect of the agreement as mentioned in section 106(1A)(b) had not been made;

b

the circumstances in which the employer’s payment is payable had been such that the employer was liable to pay a redundancy payment to the employee in those circumstances;

c

the relevant date, in relation to any such redundancy payment, had been the date on which the termination of the employee’s contract of employment is treated for the purposes of the agreement as having taken effect; and

d

in so far as the provisions of the agreement which relate to the following matters, that is to say—

i

the circumstances in which the continuity of an employee’s period of employment is to be treated as broken, and

ii

the weeks which are to count in computing a period of employment,

are inconsistent with the provisions of Schedule 13 as to those matters, those provisions of the agreement were substituted for those provisions of that Schedule.

3

In sub-paragraph (2) “the agreement” means the agreement falling within section 106(1A)(b) by reference to which the employer’s payment is payable.

SCHEDULE 8 Employees Paid by virtue of Statutory Provision by Person other than Employer

Section 117.

Annotations:

Amendments (Textual)

F428

Entry relating to section 104 of the Act repealed by Employment Act 1989 (c. 38, SIF 43:1), s. 29(4)(6), Sch. 7 Pt. II

F429

“, (2), (4) and (5)" repealed by Employment Act 1989 (c. 38, SIF 43:1), s. 29(4)(6), Sch. 7 Pt. II

Provision of Act	Reference to be construed as reference to the person responsible for paying the remuneration
Section 81(1)	The second reference to the employer.
Section 85(3)	The reference to the employer in paragraph (b).
Section 85(4)	The last reference to the employer.
Section 88(4)	The reference to the employer.
Section 89(1)	The first reference to the employer.
Section 89(4) and (5)	The references to the employer.
Section 92(3)	The second reference to the employer.
Section 98(3)	The reference to the employer.
Section 101(1)	The reference to the employer.
Section 102	The references to the employer.

F428 F428Section 106	The references to the employer.
Section 107(1)	The reference to the employer.
Section 108(1) F429	The references to the employer.
Section 110(2)	The third reference to the employer.
Section 110(5) and (6)	The reference to the employer.
Schedule 13, paragraph 12(3)	The references to the employer.

SCHEDULE 9 Industrial Tribunals

Regulations as to tribunal procedure

1

The Secretary of State may by regulations (in this Schedule referred to as “the regulations”) make such provision as appears to him to be necessary or expedient with respect to proceedings before industrial tribunals.

2

The regulations may in particular include provision—

a

for determining by which tribunal any appeal, question F430application or complaint is to be determined;

b

for enabling an industrial tribunal to hear and determine proceedings brought by virtue of section 131 concurrently with proceedings brought before the tribunal otherwise than by virtue of that section;

c

for treating the Secretary of State (either generally or in such circumstances as may be prescribed by the regulations) as a party to any proceedings before an industrial tribunal, where he would not otherwise be a party to them, and entitling him to appear and to be heard accordingly;

d

for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses;

F431e

for enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to order—

i

in England and Wales, such discovery or inspection of documents, or the furnishing of such further particulars, as might be ordered by a county court on an application by a party to proceedings before it, or

ii

in Scotland, such recovery or inspection of documents as might be ordered by the sheriff;

f

for prescribing the procedure to be followed on any appeal, reference or complaint or other proceedings before an industrial tribunal, including provisions as to the persons entitled to appear and to be heard on behalf of parties to such proceedings, and provisions for enabling an industrial tribunal to review its decisions, and revoke or vary its orders and awards, in such circumstances as may be determined in accordance with the regulations;

g

for the appointment of one or more assessors for the purposes of any proceedings before an industrial tribunal, where the proceedings are brought under an enactment which provides for one or more assessors to be appointed;

F432ga

for authorising an industrial tribunal to require persons to furnish information and produce documents to a person required for the purposes of section 2A(1)(b) of the M57Equal Pay Act 1970 to prepare a report;

h

for the award of costs or expenses, including any allowances payable under paragraph 10 other than allowances payable to members of industrial tribunals or assessors;

i

for taxing or otherwise settling any such costs or expenses (and, in particular, in England and Wales, for enabling such costs to be taxed in the county court); and

j

for the registration and proof of decisions, orders and awards of industrial tribunals.

3

In relation to proceedings on complaints under section 67 or any other enactment in relation to which there is provision for conciliation, the regulations shall include provision—

a

for requiring a copy of any such complaint, and a copy of any notice relating to it which is lodged by or on behalf of the employer against whom the complaint is made, to be sent to a conciliation officer;

b

for securing that the complainant and the employer against whom the complaint is made are notified that the services of a conciliation officer are available to them; and

c

for postponing the hearing of any such complaint for such period as may be determined in accordance with the regulations for the purpose of giving an opportunity for the complaint to be settled by way of conciliation and withdrawn.

4

In relation to proceedings under section 67—

a

where the employee has expressed a wish to be reinstated or re-engaged which has been communicated to the employer at least seven days before the hearing of the complaint; or

b

where the proceedings arise out of the employer’s failure to permit the employee to return to work after an absence due to pregnancy or confinement,

regulations shall include provision for requiring the employer to pay the costs or expenses of any postponement or adjournment of the hearing caused by his failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the complainant was dismissed, or, as the case may be, which she held before her absence, or of comparable or suitable employment.

F4334A

Without prejudice to sub-paragraph (5) or paragraph 2, a Minister of the Crown may on grounds of national security direct an industrial tribunal to sit in private when hearing or determining any proceedings specified in the direction.

5

Without prejudice to paragraph 2, the regulations may enable an industrial tribunal to sit in private for the purpose of hearing evidence which in the opinion of the tribunal relates to matters of such a nature that it would be against the interests of national security to allow the evidence to be given in public or of hearing evidence from any person which in the opinion of the tribunal is likely to consist of—

a

information which he could not disclose without contravening a prohibition imposed by or under any enactment; or

b

any information which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person; or

c

information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 29(1) of the M58Trade Union and Labour Relations Act 1974 (matters to which trade disputes relate) cause substantial injury to any undertaking of his or in which he works.

F4345A

The regulations may include provision—

a

for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation;

b

for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.

In this sub-paragraph—

“identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation;
“restricted reporting order” means an order prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain;
“sexual misconduct” means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed;
“sexual offence” means any offence to which section 141A(2) of the M59Criminal Procedure (Scotland) Act 1975, section 4 of the M60Sexual Offences (Amendment) Act 1976 or the M61Sexual Offences (Amendment) Act 1992 applies (offences under the M62Sexual Offences Act 1956, the M63Sexual Offences (Scotland) Act 1976 and certain other enactments);

and “written publication” and “relevant programme” have the same meaning as in that Act of 1992.

6

The regulations may include provision authorising or requiring an industrial tribunal, in circumstances specified in the regulations, to send F435(subject to any regulations under sub-paragraph (5A)(a)) notice or a copy of any document so specified relating to any proceedings before the tribunal, or of any decision, order or award of the tribunal, to any government department or other person or body so specified.

7

Any person who without reasonable excuse fails to comply with any requirement imposed by the regulations by virtue of subparagraph (2)(d) F436or (ga) or any requirement with respect to the discovery, recovery or inspection of documents so imposed by virtue of subparagraph (2)(e) shall be liable on summary conviction to a fine not exceeding F437level 3 on the standard scale.

F4388

If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—

a

in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

b

in the case of publication in any other form, the person publishing the matter; and

c

in the case of matter included in a relevant programme—

i

any body corporate engaged in providing the service in which the programme is included; and

ii

any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

Expressions used in this sub-paragraph and in sub-paragraph (5A) have the same meaning in this sub-paragraph as in that sub-paragraph.

9

Where a person is charged with an offence under sub-paragraph (8) it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.

10

Where an offence under sub-paragraph (8) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

a

a director, manager, secretary or other similar officer of the body corporate, or

b

a person purporting to act in any such capacity,

he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.

11

In relation to a body corporate whose affairs are managed by its members “director”, in sub-paragraph (10), means a member of the body corporate.

F4391A

it is shown that the action complained of was taken for the purpose of safe-guarding national security, the industrial tribunal shall dismiss the complaint.

2

F444Except where the complaint is that a dismissal is unfair by reason of section 57A, 59(1)(a) or 60, a certificate purporting to be signed by or on behalf of a Minister of the Crown, and certifying that the action specified in the certificate was taken for the purpose of safeguarding national security, shall for the purposes of sub-paragraph (1) be conclusive evidence of that fact.

Payment of certain sums intoRedundancy Fund

F4453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exclusion of Arbitration Act 1950

4

The M64Arbitration Act 1950 shall not apply to any proceedings before an industrial tribunal.

Presumption as to dismissal for redundancy

5

Where in accordance with the regulations an industrial tribunal determines in the same proceedings—

a

a question referred to it under sections 81 to 102, and

b

a complaint presented under section 67,

section 91(2) shall not have effect for the purposes of the proceedings in so far as they relate to the complaint under section 67.

Right of appearance

6

Any person may appear before an industrial tribunal in person or be represented by counsel or by a solicitor or by a representative of a trade union or an employers’ association or by any other person whom he desires to represent him.

Interest on sums awarded

F4466A

1

The Secretary of State may by order made with the approval of the Treasury provide that sums payable in pursuance of decisions of industrial tribunals shall carry interest at such rate and between such times as may be prescribed by the order.

2

Any interest due by virtue of such an order shall be recoverable as a sum payable in pursuance of the decision.

3

The power conferred by sub-paragraph (1) includes power—

a

to specify cases or circumstances in which interest shall not be payable;

b

to provide that interest shall be payable only on sums exceeding a specified amount or falling between specified amounts;

c

to make provision for the manner in which and the periods by reference on which interest is to be calculated and paid;

d

to provide that any enactment shall or shall not apply in relation to interest payable by virtue of an order under sub-paragraph (1) or shall apply to it with such modifications as may be specified in the order;

e

to make provision for cases where sums are payable in pursuance of decisions or awards made on appeal from industrial tribunals;

f

to make such incidental or supplemental provision as the Secretary of State considers necessary.

4

Without prejudice to the generality of sub-paragraph (3), an order under sub-paragraph (1) may provide that the rate of interest shall be the rate specified in section 17 of the M65Judgments Act 1838 as that enactment has effect from time to time.

Recovery of sums awarded

7

1

Any sum payable in pursuance of a decision of an industrial tribunal in England and Wales which has been registered in accordance with the regulations shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court.

F4472

Any order for the payment of any sum made by an industrial tribunal in Scotland (or any copy of such an order certified by the Secretary of the Tribunals) may be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the Sheriff Court of any Sheriffdom in Scotland.

3

In this paragraph any reference to a decision or order of an industrial tribunal—

a

does not include a decision or order which, on being reviewed, has been revoked by the tribunal, and

b

in relation to a decision or order which, on being reviewed, has been varied by the tribunal, shall be construed as a reference to the decision or order as so varied.

Constitution of tribunals for certain cases

F4488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remuneration for presidents and full-time chairmen of industrial tribunals

9

The Secretary of State may pay such remuneration as he may with the consent of F449the Treasury determine to the President of the Industrial Tribunals (England and Wales), the President of the Industrial Tribunals (Scotland) and any person who is a member on a full-time basis of a panel of chairmen of tribunals which is appointed in accordance with regulations under subsection (1) of section 128.

Remuneration etc. for members of industrial tribunals and for assessors and other persons

10

The Secretary of State may pay to members of industrial tribunals and to any assessors appointed for the purposes of proceedings before industrial tribunals F450and to any persons required for the purposes of section 2A(1)(b) of the M66Equal Pay Act 1970 to prepare reports such fees and allowances as he may with the consent of F451the Treasury determine and may pay to any other persons such allowances as he may with the consent of F451the Treasury determine for the purposes of, or in connection with, their attendance at industrial tribunals.

11F452. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 10 Statutory Provisions Relating to Referees and Boards of Referees

Section 130.

1

Regulations under section 37 of the M67Coal Industry Nationalisation Act 1946.

2

Regulations under section 67 of the M68National Insurance Act 1946.

3

Regulations under section 68 of the M69National Health Service Act 1946, and orders under section 11(9) or section 31(5) of that Act.

4

Regulations under section 67 of the M70National Health Service (Scotland) Act 1947.

5

Regulations under Schedule 5 to the M71Fire Services Act 1947.

6

Regulations under section 101 of the M72Transport Act 1947.

F4537. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

Regulations under section 140 of the M73Local Government Act 1948, and such regulations as applied by any local Act, whether passed before or after this Act.

9

Regulations under subsection (1) or subsection (2) of section 60 of the M74National Assistance Act 1948.

10

Rules under section 3 of the M75Superannuation (Miscellaneous Provisions) Act 1948.

11

Subsections (3) and (5) of section 58 of the M76Gas Act 1948, and regulations under section 60 of that Act.

12

Subsection (4) of section 6 of the M77Commonwealth Telegraphs Act 1949 and regulations under that section.

13

Regulations under section 25 of the M78Prevention of Damage by Pests Act 1949.

14

Regulations under section 42 of the M79Justices of the Peace Act 1949.

15

Regulations under section 27 or section 28 of the M80Transport Act 1953.

16

Regulations under section 24 of the M81Iron and Steel Act 1953.

F45417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

Orders under section 23 of the M82Local Government Act 1958 and regulations under section 60 of that Act.

19

Regulations under section 1 of the M83Water Officers Compensation Act 1960.

20

Regulations under section 18(6) of the M84Land Drainage Act 1961.

21

Subsection (6) of section 74 of the M85Transport Act 1962 and orders under that section, regulations under section 81 of that Act, and paragraph 17(3) of Schedule 7 to that Act.

22

Orders under section 84 of the M86London Government Act 1963 and regulations under section 85 of that Act.

23

Regulations under section 106 of the M87Water Resources Act 1963.

SCHEDULE 11 Employment Appeal Tribunal

Section 135.

Part I Provisions as to Membership, Sittings, Proceedings and Powers

Tenure of office of appointed members of Appeal Tribunal

1

Subject to paragraphs 2 and 3, a member of the Appeal Tribunal appointed by Her Majesty under section 135(2)(c) (in this Schedule referred to as an “appointed member”) shall hold and vacate office as such a member in accordance with the terms of his appointment.

2

An appointed member may at any time resign his membership by notice in writing addressed to the Lord Chancellor and the Secretary of State.

3

1

If the Lord Chancellor, after consultation with the Secretary of State, is satisfied that an appointed member—

a

has been absent from sittings of the Appeal Tribunal for a period longer than six consecutive months without the permission of the President of the Tribunal; or

b

has become bankrupt or made an arrangement with his creditors; or

c

is incapacitated by physical or mental illness; or

d

is otherwise unable or unfit to discharge the functions of a member;

the Lord Chancellor may declare his office as a member to be vacant and shall notify the declaration in such manner as the Lord Chancellor thinks fit; and thereupon the office shall become vacant.

2

In the application of this paragraph to Scotland for the references in sub-paragraph (1)(b) to a member’s having become bankrupt and to a member’s having made an arrangement with his creditors there shall be substituted respectively references to a member’s estate having been sequestrated and to a member’s having made a trust deed for behoof of his creditors or a composition contract.

Temporary membership of Appeal Tribunal

4

At any time when the office of President of the Appeal Tribunal is vacant, or the person holding that office is temporarily absent or otherwise unable to act as President of the Tribunal, the Lord Chancellor may nominate another judge nominated under section 135(2)(a) to act temporarily in his place.

5

At any time when a judge of the Appeal Tribunal nominated by the Lord Chancellor is temporarily absent or otherwise unable to act as a judge of that Tribunal, the Lord Chancellor may nominate another person who is qualified to be nominated under section 135(2)(a) to act temporarily in his place.

6

At any time when a judge of the Appeal Tribunal nominated by the Lord President of the Court of Session is temporarily absent or otherwise unable to act as a judge of the Appeal Tribunal, the Lord President may nominate another judge of the Court of Session to act temporarily in his place.

7

At any time when an appointed member is temporarily absent or otherwise unable to act as a member of the Appeal Tribunal, the Lord Chancellor and the Secretary of State may jointly appoint a person appearing to them to have the qualifications for appointment as such a member to act temporarily in his place.

8

1

At any time when it appears to the Lord Chancellor that it is expedient to do so in order to facilitate in England and Wales the disposal of business in the Appeal Tribunal, he may appoint a qualified person to be a temporary additional judge of the Tribunal during such period or on such occasions as the Lord Chancellor thinks fit.

2

In this paragraph “qualified person” means a person qualified for appointment as a puisne judge of the High Court under section F45510 of the M88Supreme Court Act 1981 or any person who has held office as a judge of the Court of Appeal or of the High Court.

9

A person appointed to act temporarily in place of the President or any other member of the Appeal Tribunal shall, when so acting, have all the functions of the person in whose place he acts.

10

A person appointed to be a temporary additional judge of the Appeal Tribunal shall have all the functions of a judge nominated under section 135(2)(a).

11

No judge shall be nominated under paragraph 5 or 6 except with his consent.

Organisation and sittings of Appeal Tribunal

12

The Appeal Tribunal shall be a superior court of record and shall have an official seal which shall be judicially noticed.

13

The Appeal Tribunal shall have a central office in London.

14

The Appeal Tribunal may sit at any time and in any place in Great Britain.

15

The Appeal Tribunal may sit, in accordance with directions given by the President of the Tribunal, either as a single tribunal or in two or more divisions concurrently.

F45616

1

Subject to sub-paragraphs (2) to (4), proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number of persons whose knowledge or experience of industrial relations is as representatives of employers and whose knowledge or experience of industrial relations is as representatives of workers.

2

With the consent of the parties proceedings before the Appeal Tribunal may be heard by a judge and one appointed member or by a judge and three appointed members.

3

Proceedings on an appeal on a question arising from any decision of, or arising in any proceedings before, an industrial tribunal consisting of the person specified in section 128(2A)(a) alone shall be heard by a judge alone unless a judge directs that the proceedings shall be heard in accordance with sub-paragraphs (1) and (2).

4

Where a Minister of the Crown so directs in relation to any proceedings on grounds of national security, the proceedings shall be heard by the President of the Appeal Tribunal alone.

Rules

17

1

The Lord Chancellor, after consultation with the Lord President of the Court of Session, shall make rules with respect to proceedings before the Appeal Tribunal.

2

Subject to those rules, the Tribunal shall have power to regulate its own procedure.

18

Without prejudice to the generality of paragraph 17 the rules may include provision—

a

with respect to the manner in which an appeal may be brought and the time within which it may be brought;

F457aa

with respect to the manner in which F458any application to the Appeal Tribunal may be made;

b

for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses;

F459c

for requiring or enabling the Appeal Tribunal to sit in private in circumstances in which an industrial tribunal is required or empowered to sit in private by virtue of paragraph 1 of Schedule 9;

F460d

for the registration and proof of any award made on an application to the Appeal Tribunal under F461section 67 or 176 of the Trade Union and Labour Relations (Consolidation) Act 1992.

F462e

for interlocutory F463matters arising on any appeal or application to the Appeal Tribunal to be dealt with otherwise than in accordance with paragraph 16.

F46418A

1

Without prejudice to the generality of paragraph 17 the rules may, as respects proceedings to which this paragraph applies, include provision—

a

b

for cases involving allegations of sexual misconduct, enabling the Appeal Tribunal, on the application of any party to the proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the Appeal Tribunal.

2

This paragraph applies to—

a

proceedings on an appeal against a decision of an industrial tribunal to make, or not to make, a restricted reporting order; and

b

proceedings on an appeal against any interlocutory decision of an industrial tribunal in proceedings in which the industrial tribunal has made a restricted reporting order which it has not revoked.

3

a

in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

b

in the case of publication in any other form, the person publishing the matter; and

c

in the case of matter included in a relevant programme—

i

any body corporate engaged in providing the service in which the programme is included; and

ii

any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

4

Where a person is charged with an offence under sub-paragraph (3) it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question.

5

Where an offence under sub-paragraph (3) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

a

a director, manager, secretary or other similar officer of the body corporate, or

b

a person purporting to act in any such capacity,

he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.

6

In relation to a body corporate whose affairs are managed by its members “director”, in sub-paragraph (5), means a member of the body corporate.

7

In this paragraph—

“identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation;
“restricted reporting order” means an order prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain;
“sexual misconduct” means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed;
“sexual offence” means any offence to which section 141A(2) of the M89Criminal Procedure (Scotland) Act 1975, section 4 of the M90Sexual Offences (Amendment) Act 1976 or the M91Sexual Offences (Amendment) Act 1992 applies (offences under the M92Sexual Offences Act 1956, the M93Sexual Offences (Scotland) Act 1976 and certain other enactments);

and “written publication” and “relevant programme” have the same meaning as in that Act of 1992.

19

1

Without prejudice to the generality of paragraph 17 the rules may empower the Appeal Tribunal to order a party to any proceedings before the Tribunal to pay to any other party to the proceedings the whole or part of the costs or expenses incurred by that other party in connection with the proceedings, where in the opinion of the Tribunal—

a

the proceedings were unnecessary, improper or vexatious, or

b

there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.

2

Except as provided by sub-paragraph (1), the rules shall not enable the Appeal Tribunal to order the payment of costs or expenses by any party to proceedings before the Tribunal.

20

Any person may appear before the Appeal Tribunal in person or be represented by counsel or by a solicitor or by a representative of a trade union or an employers’ association or by any other person whom he desires to represent him.

Rules

17

1

The Lord Chancellor, after consultation with the Lord President of the Court of Session, shall make rules with respect to proceedings before the Appeal Tribunal.

2

Subject to those rules, the Tribunal shall have power to regulate its own procedure.

18

Without prejudice to the generality of paragraph 17 the rules may include provision—

a

with respect to the manner in which an appeal may be brought and the time within which it may be brought;

aa

with respect to the manner in which any application to the Appeal Tribunal may be made;

b

for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses;

c

for requiring or enabling the Appeal Tribunal to sit in private in circumstances in which an industrial tribunal is required or empowered to sit in private by virtue of paragraph 1 of Schedule 9;

d

for the registration and proof of any award made on an application to the Appeal Tribunal under section 67 or 176 of the Trade Union and Labour Relations (Consolidation) Act 1992.

e

for interlocutory matters arising on any appeal or application to the Appeal Tribunal to be dealt with otherwise than in accordance with paragraph 16.

19

1 a

the proceedings were unnecessary, improper or vexatious, or

b

there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.

2

Except as provided by sub-paragraph (1), the rules shall not enable the Appeal Tribunal to order the payment of costs or expenses by any party to proceedings before the Tribunal.

20 Powers of Tribunal

21

1

For the purpose of disposing of an appeal the Appeal Tribunal may exercise any powers of the body or officer from whom the appeal was brought or may remit the case to that body or officer.

2

Any decision or award of the Appeal Tribunal on an appeal shall have the same effect and may be enforced in the same manner as a decision or award of a body or officer from whom the appeal was brought.

F46521A

1

Any sum payable in England and Wales in pursuance of an award of the Appeal Tribunal under F466section 67 or 176 of the Trade Union and Labour Relations (Consolidation) Act 1992 which has been registered in accordance with the rules shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court.

2

Any order by the Appeal Tribunal for the payment in Scotland of any sum in pursuance of such an award (or any copy of such an order certified by the Secretary of the Tribunals) may be enforced in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the Sheriff Court of any Sheriffdom in Scotland.

F4673

Any sum payable in pursuance of an award of the Appeal Tribunal under F466section 67 or 176 of the Trade Union and Labour Relations (Consolidation) Act 1992 shall be treated as if it were a sum payable in pursuance of a decision of an industrial tribunal for the purposes of paragraph 6A of Schedule 9 (interest on industrial tribunal awards).

22

1

The Appeal Tribunal shall, in relation to the attendance and examination of witnesses, the production and inspection of documents and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority—

a

in England and Wales, as the High Court,

b

in Scotland, as the Court of Session.

2

No person shall be punished for contempt of the Tribunal except by, or with the consent of, a judge.

23

1 F4682

A magistrates’ court shall not remit the whole or any part of a fine imposed by the Appeal Tribunal except with the consent of a judge who is a member of the Tribunal.

3

This paragraph does not extend to Scotland.

Staff

24

The Secretary of State may appoint such officers and servants of the Appeal Tribunal as he may determine, subject to the approval of F469the Treasury as to numbers and as to terms and conditions of service.

Part II Supplementary

Remuneration and allowances

25

The Secretary of State shall pay the appointed members of the Appeal Tribunal, the persons appointed to act temporarily as appointed members, and the officers and servants of the Tribunal such remuneration and such travelling and other allowances as he may with the approval of F470the Treasury determine.

26

A person appointed to be a temporary additional judge of the Appeal Tribunal shall be paid such remuneration and allowances as the Lord Chancellor may, with the approval of F471the Treasury determine.

Pensions, etc.

27

If the Secretary of State determines, with the approval of F472the Treasury, that this paragraph shall apply in the case of an appointed member, the Secretary of State shall pay such pension, allowance or gratuity to or in respect of that member on his retirement or death or make that member such payments towards the provision of such a pension, allowance or gratuity as the Secretary of State may with the like approval determine.

28

Where a person ceases to be an appointed member otherwise than on his retirement or death and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may make him a payment of such amount as the Secretary of State may, with the approval of F473the Treasury, determine.

C118SCHEDULE 12 Death of Employee or Employer

Section 150.

Annotations:

Modifications etc. (not altering text)

C118

Sch. 12 extended (E.W.) (3.1.1995) by 1994 c. 40, ss. 20, 82(2), Sch. 8 para. 22

Sch. 12 extended (prosp.) by 1995 c. 26, ss. 46(4)(c), 180(1) (with s. 121(5))

Sch. 12 extended (E.W.) (26.8.1994) by 1994 c. 20, s. 4, Sch. 4 para. 22; S.I. 1994/1841, art. 2

Part I General

Introductory

1

In this Schedule “the relevant provisions” means Part I (so far as it relates to itemised pay statements), section 53 and Parts II, III, V, VI and VII of this Act and this Schedule.

Institution or continuance of tribunal proceedings

2

Where an employee or employer has died, tribunal proceedings arising under any of the relevant provisions may be instituted or continued by a personal representative of the deceased employee or, as the case may be, defended by a personal representative of the deceased employer.

3

1

If there is no personal representative of a deceased employee, tribunal proceedings arising under any of the relevant provisions (or proceedings to enforce a tribunal award made in any such proceedings) may be instituted or continued on behalf of the estate of the deceased employee by such other person as the industrial tribunal may appoint being either—

a

a person authorised by the employee to act in connection with the proceedings before the employee’s death; or

b

the widower, widow, child, father, mother, brother or sister of the deceased employee,

and references in this Schedule to a personal representative shall be construed as including such a person.

2

In such a case any award made by the industrial tribunal shall be in such terms and shall be enforceable in such manner as may be provided by regulations made by the Secretary of State.

4

1

Subject to any specific provision of this Schedule to the contrary, in relation to an employee or employer who has died—

a

any reference in the relevant provisions to the doing of anything by or in relation to an employee or employer shall be construed as including a reference to the doing of that thing by or in relation to any personal representative of the deceased employee or employer; and

b

any reference in the said provisions to a thing required or authorised to be done by or in relation to an employee or employer shall be construed as including a reference to any thing which, in accordance with any such provision as modified by this Schedule (including sub-paragraph (a)), is required or authorised to be done by or in relation to any personal representative of the deceased employee or employer.

2

Nothing in this paragraph shall prevent references in the relevant provisions to a successor of an employer from including a personal representative of a deceased employer.

Rights and liabilities accruing after death

5

Any right arising under any of the relevant provisions as modified by this Schedule shall, if it had not accrued before the death of the employee in question, nevertheless devolve as if it had so accrued.

6

Where by virtue of any of the relevant provisions as modified by this Schedule a personal representative of a deceased employer is liable to pay any amount and that liability had not accrued before the death of the employer, it shall be treated for all purposes as if it were a liability of the deceased employer which had accrued immediately before the death.

Part II Unfair Dismissal

Introductory

7

In this Part of this Schedule “the unfair dismissal provisions” means Part V of this Act and this Schedule.

Death during notice period

8

Where an employer has given notice to an employee to terminate his contract of employment and before that termination the employee or the employer dies, the unfair dismissal provisions shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the death.

F4749

Where—

a

the employee’s contract of employment has been terminated; and

b

by virtue of subsection (5) or (6) of section 55 a date later than the effective date of termination as defined in subsection (4) of that section is to be treated as the effective date of termination for the purposes of certain of the unfair dismissal provisions; and

c

before that later date the employer or the employee dies;

subsection (5) or, as the case may be, (6) shall have effect as if the notice referred to in that section as required by section 49 would have expired on the date of the death.

Remedies for unfair dismissal

10

Where an employee has died, then, unless an order for reinstatement or re-engagement has already been made, section 69 shall not apply; and accordingly if the industrial tribunal finds that the grounds of the complaint are well-founded the case shall be treated as falling within section 68(2) as a case in which no order is made under section 69.

11

If an order for reinstatement or re-engagement has been made and the employee dies before the order is complied with—

a

if the employer has before the death refused to reinstate or re-engage the employee in accordance with the order, section 71(2) and (3) shall apply and an award shall be made under section 71(2)(b) unless the employer satisfies the tribunal that it was not practicable at the time of the refusal to comply with the order;

b

if there has been no such refusal, section 71(1) shall apply if the employer fails to comply with any ancillary terms of the order which remain capable of fulfilment after the employee’s death as it would apply to such a failure to comply fully with the terms of an order where the employee had been reinstated or re-engaged.

Part III Redundancy Payments: Death of Employer

Introductory

12

The provisions of this Part shall have effect in relation to an employee where his employer (in this Part referred to as “the deceased employer”) dies.

F47513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dismissal

14

Where by virtue of subsection (1) of section 93 the death of the deceased employer is to be treated for the purposes of Part VI of this Act as a termination by him of the contract of employment, section 84 shall have effect subject to the following modifications:—

a

for subsection (1) there shall be substituted the following subsection—

1
If an employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment, by a personal representative of the deceased employer and the renewal or re-engagement takes effect not later than eight weeks after the death of the deceased employer, then, subject to subsections (3) and (6), the employee shall not be regarded as having been dismissed by reason of the ending of his employment under the previous contract.

b

in subsection (2), paragraph (a) shall be omitted and in paragraph (b) for the words “four weeks” there shall be substituted the words “eight weeks”;

c

in subsections (5) and (6), references to the employer shall be construed as references to the personal representative of the deceased employer.

15

Where by reason of the death of the deceased employer the employee is treated for the purpose of Part VI of this Act as having been dismissed by him, section 82 shall have effect subject to the following modifications—

a

for subsections (3) there shall be substituted the following subsection—

3
If a personal representative of the deceased employer makes an employee an offer (whether in writing or not) to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect not later than eight weeks after the death of the deceased employer the provisions of subsections (5) and (6) shall have effect.

b

in subsection (4), paragraph (a) shall be omitted and in paragraph (b) for the words “four weeks” there shall be substituted the words “eight weeks”;

c

in subsection (5), the references to the employer shall be construed as a reference to the personal representative of the deceased employer.

16

For the purposes of section 82 as modified by paragraph 15—

the deceased employer has died before the end of the next four weeks after the service of that notice, and

b

the employee has not terminated the contract of employment by notice expiring before the death of the deceased employer.

19

If in the circumstances specified in paragraph 18 the employee’s contract of employment is not renewed by a personal representative of the deceased employer before the end of the next four weeks after the service of the notice of intention to claim, and he is not re-engaged under a new contract by such a personal representative before the end of those four weeks, section 88(1) and (2) and (in relation to subsection (1) of that section) section 89(2) and (3) shall apply as if—

a

the deceased employer had not died, and

b

the employee had terminated the contract of employment by a week’s notice (or, if under the contract he is required to give more than a week’s notice to terminate the contract, he had terminated it by the minimum notice which he is so required to give) expiring at the end of those four weeks,

but sections 88(3) and (4) and 89(1) and (4) shall not apply.

20

1

The provisions of this paragraph shall have effect where, in the circumstances specified in paragraph 18, the employee’s contract of employment is renewed by a personal representative of the deceased employer before the end of the next four weeks after the service of the notice of intention to claim, or he is re-engaged under a new contract by such a personal representative before the end of those four weeks, and—

a

he was laid off or kept on short-time by the deceased employer for one or more of those weeks, and

b

he is laid off or kept on short-time by the personal representative for the week, or for the next two or more weeks, following the renewal or re-engagement.

2

Where the conditions specified in sub-paragraph (1) are fulfilled, sections 88 and 89 shall apply as if—

a

all the weeks for which the employee was laid off or kept on short-time as mentioned in sub-paragraph (1) were consecutive weeks during which he was employed (but laid off or kept on short-time) by the same employer, and

b

each of the periods specified in paragraphs (a) and (b) of subsection (5) of section 89 were extended by any week or weeks any part of which was after the death of the deceased employer and before the date on which the renewal or re-engagement took effect.

Continuity of period of employment

21

For the purposes of the application, in accordance with section 100(1), of any provisions of Part VI of this Act in relation to an employee who was employed as a domestic servant in a private household, any reference to a personal representative in—

a

this Part of this Schedule, or

b

paragraph 17 of Schedule 13,

shall be construed as including a reference to any person to whom, otherwise than in pursuance of a sale or other disposition for valuable consideration, the management of the household has passed in consequence of the death of the deceased employer.

Part IV Redundancy Payments: Death of Employee

22

the whole of a redundancy payment to which he would have been entitled apart from another provision therein mentioned, or

b

such part of such a redundancy payment as the tribunal thinks fit,

any reference in paragraph 5 to a right shall be construed as including a reference to any right to receive the whole or part of a redundancy payment if the tribunal determines that the employer shall be liable to pay it.

C119 C120 C121 C122SCHEDULE 13 Computation of Period of Employment

Section 151.

Annotations:

Modifications etc. (not altering text)

C119

Sch. 13 extended by Employment Protection Act 1975 (c.71, SIF 43:1), s. 119(7) (as amended by Employment Act 1982 (c. 46, SIF 43:5), s. 20, Sch. 2 para. 6(1); modified by Crown Agents Act 1979 (c. 43, SIF 57), s. 1, Sch. 1 para. 13(3), New Towns Act 1981 (c. 64, SIF 123:3), s. 54(5), Wildlife and Countryside Act 1981 (c. 69, SIF 4:5), Sch. 13 para. 8(4) and Civil Aviation Act 1982 (c. 16, SIF 9), s. 22, Sch. 3 para. 6(1)

C120

Sch. 13 modified (E.W.) by Prosecution of Offences Act 1985 (c. 23, SIF 39:1), s. 11(5), Local Government Act 1985 (c. 51, SIF 81:1), s. 54(2), Housing (Consequential Provisions) Act 1985 (c. 71, SIF 61), s. 5(2), Sch. 4 para. 7(2)(b) and National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 7(2)(d)

C121

Sch. 13 modified by Pilotage Act 1987 (c. 21, SIF 111), s. 25(6)(a), Education Reform Act 1988 (c. 40, SIF 41:1), ss. 174(2), 231(7), 235(6), Electricity Act 1989 (c. 29, SIF 44:1), ss. 56(3), 104, 105, 112(3), Sch. 14 para. 4(1), Sch. 15 para. 4(1), Sch. 17 para. 35(1) and National Health Service (Scotland) Act 1978 (c. 29, SIF 113:2), s. 12C (as added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 31)

C122

Sch. 13 modified (S.) by Housing (Scotland) Act 1987 (c. 26, SIF 61), s. 339(1), Sch. 22 Pt. II para. 10(2)(b)

Preliminary

F4761

1

Except so far as otherwise provided by the following provisions of this Schedule, a week which does not count under paragraphs 3 to 12 breaks the continuity of the period of employment.

2

The provisions of this Schedule apply, subject to paragraph 14, to a period of employment notwithstanding that during that period the employee was engaged in work wholly or mainly outside Great Britain, or was excluded by or under this Act from any right conferred by this Act.

3

A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous.

Normal working weeks

3

Any week in which the employee is employed for sixteen hours or more shall count in computing a period of employment.

Employment governed by contract

4

Any week during the whole or part of which the employee’s relations with the employer are governed by a contract of employment which normally involves employment for sixteen hours or more weekly shall count in computing a period of employment.

5

1

If the employee’s relations with his employer cease to be governed by a contract which normally involves work for sixteen hours or more weekly and become governed by a contract which normally involves employment for eight hours or more, but less than sixteen hours, weekly and, but for that change, the later weeks would count in computing a period of employment, or would not break the continuity of a period of employment, then those later weeks shall count in computing a period of employment or, as the case may be, shall not break the continuity of a period of employment, notwithstanding that change.

2

Not more than twenty-six weeks shall count under this paragraph between any two periods falling under paragraph 4, and in computing the said figure of twenty-six weeks no account shall be taken of any week which counts in computing a period of employment, or does not break the continuity of a period of employment, otherwise than by virtue of this paragraph.

6

1

An employee whose relations with his employer are governed, or have been from time to time governed, by a contract of employment which normally involves employment for eight hours or more, but less than sixteen hours, weekly shall nevertheless, if he satisfies the condition referred to in sub-paragraph (2), be treated for the purposes of this Schedule (apart from this paragraph) as if his contract normally involved employment for sixteen hours or more weekly, and had at all times at which there was a contract during the period of employment of five years or more referred to in sub-paragraph (2) normally involved employment for sixteen hours or more weekly.

2

Sub-paragraph (1) shall apply if the employee, on the date by reference to which the length of any period of employment falls to be ascertained in accordance with the provisions of this Schedule, has been continuously employed within the meaning of sub-paragraph (3) for a period of five years or more.

3

In computing for the purposes of sub-paragraph (2) an employee’s period of employment, the provisions of this Schedule (apart from this paragraph) shall apply but as if, in paragraphs 3 and 4, for the words “sixteen hours” wherever they occur, there were substituted the words “eight hours”.

7

b

absent from work on account of a temporary cessation of work, or

c

absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes, or

d

absent from work wholly or partly because of pregnancy or confinement,

that week shall, notwithstanding that it does not fall under paragraph 3, 4 or 5, count as a period of employment.

2

Not more than twenty-six weeks shall count under paragraph (a) or, subject to paragraph 10, under paragraph (d) of sub-paragraph (1) between any periods falling under paragraph 3, 4 or 5.

Maternity

10

If an employee returns to work in accordance with F478section 45(1) or in pursuance of an offer made in the circumstances described in section 56A(2) after a period of absence from work wholly or partly occasioned by pregnancy or confinement, every week during that period shall count in computing a period of employment, notwithstanding that it does not fall under paragraph 3, 4 or 5.

Intervals in employment where section 55(5) or 84(1) or 90(3) applies

11

1

In ascertaining, for the purposes of section 64(1)(a) F479. . . and of section 73(3), the period for which an employee has been continuously employed, where by virtue of section 55(5) F480or, as the case may be, (6) a date is treated as the effective date of termination which is later than the effective date of termination as defined by section 55(4), the period of the interval between those two dates shall count as a period of employment notwithstanding that it does not otherwise count under this Schedule.

2

Where by virtue of section 84(1) an employee is treated as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, then, in determining for the purposes of section 81(1) or Schedule 4 whether he has been continuously employed for the requisite period, the period of that interval shall count as a period of employment except in so far as it is to be disregarded under paragraphs 12 to 14 (notwithstanding that it does not otherwise count under this Schedule).

3

Where by virtue of section 90(3) a date is to be treated as the relevant date for the purposes of section 81(4) which is later than the relevant date as defined by section 90(1), then in determining for the purposes of section 81(1) or Schedule 4 whether the employee has been continuously employed for the requisite period, the period of the interval between those two dates shall count as a period of employment except in so far as it is to be disregarded under paragraphs 12 to 14 (notwithstanding that it does not otherwise count under this Schedule).

Payment of previous redundancy payment or equivalent payment

C12312

1

Where the conditions mentioned in sub-paragraph (2)(a) or (2)(b) are fulfilled in relation to a person, then in determining, for the purposes of section 81(1) or Schedule 4, whether at any subsequent time he has been continuously employed for the requisite period, or for what period he has been continuously employed, the continuity of the period of employment shall be treated as having been broken—

a

in so far as the employment was under a contract of employment, at the date which was the relevant date in relation to the payment mentioned in sub-paragraph (2)(a) or, as the case may be, sub-paragraph (2)(b); or

b

in so far as the employment was otherwise than under a contract of employment, at the date which would have been the relevant date in relation to that payment had the employment been under a contract of employment,

and accordingly no account shall be taken of any time before that date.

2

Sub-paragraph (1) has effect—

a

where—

i

a redundancy payment is paid to an employee, whether in respect of dismissal or in respect of lay-off or short-time; and

ii

the contract of employment under which he was employed (in this section referred to as “the previous contract”) is renewed, whether by the same or another employer, or he is re-engaged under a new contract of employment, whether by the same or another employer; and

iii

the circumstances of the renewal of re-engagement are such that, in determining for the purposes of section 81(1) or Schedule 4 whether at any subsequent time he has been continuously employed for the requisite period, or for what period he has been continuously employed, the continuity of his period of employment would, apart from this paragraph, be treated as not having been broken by the termination of the previous contract and the renewal or re-engagement; or

b

where—

i

a payment has been made, whether in respect of the termination of any person’s employment or in respect of lay-off or short-time, either in accordance with any provisions of a scheme under section 1 of the M94Superannuation Act 1972 or in accordance with any such arrangements as are mentioned in section 111(3); and

ii

he commences new, or renewed, employment; and

iii

the circumstances of the commencement of the new, or renewed, employment are such that, in determining for the purposes of section 81(1) or Schedule 4 whether at any subsequent time he has been continuously employed for the requisite period, or for what period he has been continuously employed, the continuity of his period of employment would, apart from this paragraph, be treated as not having been broken by the termination of the previous employment and the commencement of the new, or renewed, employment.

3

For the purposes of this paragraph, a redundancy payment shall be treated as having been paid if—

a

the whole of the payment has been paid to the employee by the employer, or, in a case where a tribunal has determined that the employer is liable to pay part (but not the whole) of the redundancy payment, that part of the redundancy payment has been paid in full to the employee by the employer, or

b

the Secretary of State has paid a sum to the employee in respect of the redundancy payment under section 106.

F48113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Redundancy payments: employment wholly or partly abroad

14

1

In computing in relation to an employee the period specified in section 81(4) or the period specified in paragraph 1 of Schedule 4, a week of employment shall not count if—

a

the employee was employed outside Great Britain during the whole or part of that week, and

b

he was not during that week, or during the corresponding contribution week,—

F482ia

where the week is a week of employment beginning after 1st July 1992, an employed earner for the purposes of the Social Security Contributions and Benefits Act 1992 in respect of whom a secondary Class 1 contribution was payable under that Act; or

i

where the week is a week of employment after 1st June 1976 F483and not falling within sub-paragraph (ia) above, an employed earner for the purposes of the M95Social Security Act 1975 in respect of whom a secondary Class 1 contribution was payable under that Act; or

ii

where the week is a week of employment after 6th April 1975 and before 1st June 1976, an employed earner for the purposes of the Social Security Act 1975; or

iii

where the week is a week of employment before 6th April 1975, an employee in respect of whom an employer’s contribution was payable in respect of the corresponding contribution week;

whether or not the contribution mentioned in paragraph (i) or (iii) of this sub-paragraph was in fact paid.

2

For the purposes of the application of sub-paragraph (1) to a week of employment where the corresponding contribution week began before 5th July 1948, an employer’s contribution shall be treated as payable as mentioned in sub-paragraph (1) if such a contribution would have been so payable if the statutory provisions relating to national insurance which were in force on 5th July 1948 had been in force in that contribution week.

3

Where by virtue of sub-paragraph (1) a week of employment does not count in computing such a period as is mentioned in that sub-paragraph, the continuity of that period shall not be broken by reason only that that week of employment does not count in computing that period.

4

Any question arising under this paragraph whether—

a

an employer’s contribution was or would have been payable, as mentioned in sub-paragraph (1) or (2), or

b

a person was an employed earner for the purposes of the M96Social Security Act 1975 F484or the Social Security Contributions and Benefits Act 1992 and if so whether a secondary Class 1 contribution was payable in respect of him under that Act,

shall be determined by the Secretary of State; and any legislation (including regulations) as to the determination of questions which under that Act the Secretary of State is empowered to determine (including provisions as to the reference of questions for decision, or as to appeals, to the High Court or the Court of Session) shall apply to the determination of any question by the Secretary of State under this paragraph.

5

In this paragraph “employer’s contribution” has the same meaning as in the M97National Insurance Act 1965, and “corresponding contribution week", in relation to a week of employment, means a contribution week (within the meaning of the said Act of 1965) of which so much as falls within the period beginning with midnight between Sunday and Monday and ending with Saturday also falls within that week of employment.

18

If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters his employment is an associated employer of the first-mentioned employer, the employee’s period of employment at that time shall count as a period of employment with the second-mentioned employer and the change of employer shall not break the continuity of the period of employment.

F48918A

1

If an employee of one of the employers described in sub-paragraph (2) is taken into the employment of another of those employers, his period of employment at the time of the change of employer shall count as a period of employment with the second employer and the change shall not break the continuity of the period of employment.

2

The employers referred to in sub-paragraph (1) are the governors of the schools maintained by a local education authority and that authority.

F49018B

a

for preserving the continuity of a person’s period of employment for the purposes of this Schedule or for the purposes of this Schedule as applied by or under any other enactment specified in the regulations, or

b

for modifying or excluding the operation of paragraph 12 subject to the recovery of any such payment as is mentioned in sub-paragraph (2) of that paragraph,

in cases where, in consequence of action to which sub-paragraph (2) applies, a dismissed employee is reinstated or re-engaged by his employer or by a successor or associated employer of that employer.

2

This sub-paragraph applies to any action taken in relation to the dismissal of an employee which consists—

a

of the presentation by him of a F493relevant complaint of dismissal, or

b

of his making a claim in accordance with a dismissal procedures agreement designated by an order under section 65, or

c

of any action taken by a conciliation officer under F494his relevant conciliation powers or

F495d

of the making of a relevant compromise contract.

F4963

In sub-paragraph (2)—

“relevant complaint of dismissal” means a complaint under section 67 of this Act, a complaint under section 63 of the M100Sex Discrimination Act 1975 arising out of a dismissal or a complaint under section 54 of the M101Race Relations Act 1976 arising out of a dismissal;
“relevant conciliation powers” means section 134(3) of this Act, section 64(2) of the Sex Discrimination Act 1975 or section 55(2) of the Race Relations Act 1976; and
“relevant compromise contract” means an agreement or contract authorised by section 140(2)(fa) or (fb) of this Act, section 77(4)(aa) of the Sex Discrimination Act 1975 or section 72(4)(aa) of the Race Relations Act 1976.

Employment before the commencement of Act

21

Save as otherwise expressly provided, the provisions of this Schedule apply to periods before it comes into force as they apply to later periods.

22

If, in any week beginning before 6th July 1964, the employee was, for the whole or any part of the week, absent from work—

a

because he was taking part in a strike, or

b

because of a lock-out by the employer,

the week shall count as a period of employment.

23

Without prejudice to the foregoing provisions of this Schedule, any week which counted as a period of employment in the computation of a period of employment in accordance with the M102Contracts of Employment Act 1972 whether for the purposes of that Act, the M103Redundancy Payments Act 1965, the M104Trade Union and Labour Relations Act 1974 or the M105Employment Protection Act 1975, shall count as a period of employment for the purposes of this Act, and any week which did not break the continuity of a person’s employment for the purposes of those Acts shall not break the continuity of a period of employment for the purposes of this Act.

Interpretation

24

1

In this Schedule, unless the context otherwise requires,—

“lock-out” means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment;
“strike” means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment;
“week” means a week ending with Saturday.

2

For the purposes of this Schedule the hours of employment of an employee who is required by the terms of his employment to live on the premises where he works shall be the hours during which he is on duty or during which his services may be required.

C128 C129SCHEDULE 14 Calculation of Normal Working Hours and a Week’s Pay

Section 152.

Annotations:

Modifications etc. (not altering text)

C128

Sch. 14 applied (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 190(5), 302 (with ss. 283-286).

C129

Sch. 14 applied (with modifications) (30.8.1993) by 1992 c. 52, s. 158(7) (as inserted (30.8.1993) by 1993 c. 19, s. 49(1), Sch. 7 para.21; S.I. 1993/1908, art. 2(1), Sch. 1)

C130Part I Normal Working Hours

Annotations:

Modifications etc. (not altering text)

C130

Sch. 14 Pt. I (paras. 1-2) applied (16.10.1992) by Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), ss. 281(6), 302.

1

For the purposes of this Schedule the cases where there are normal working hours include cases where the employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, and, subject to paragraph 2, in those cases that fixed number of hours shall be the normal working hours.

2

If in such a case—

a

the contract of employment fixes the number, or the minimum number, of hours of employment in the said week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

b

that number or minimum number of hours exceeds the number of hours without overtime.

that number or minimum number of hours (and not the number of hours without overtime) shall be the normal working hours.

C131Part II A Week’s Pay

Annotations:

Modifications etc. (not altering text)

C131

Sch. 14 Pt. II (paras. 3–12) modified by S.I. 1986/151, arts. 2, 5, S.I. 1986/379, art. 3, S.I. 1989/1139, reg. 5 and Education Reform Act 1988 (c. 40, SIF 41:1), ss. 178(2)(b), 231(7), 235(6)

Employments for which there are normal working hours

3

1

This paragraph and paragraph 4 shall apply if there are normal working hours for an employee when employed under the contract of employment in force on the calculation date.

2

Subject to paragraph 4, if an employee’s remuneration for employment in normal working hours, whether by the hour or week or other period, does not vary with the amount of work done in the period, the amount of a week’s pay shall be the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

3

Subject to paragraph 4, if sub-paragraph (2) does not apply, the amount of a week’s pay shall be the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks—

a

where the calculation date is the last day of a week, ending with that week;

b

in any other case, ending with the last complete week before the calculation date.

4

References in this paragraph to remuneration varying with the amount of work done include references to remuneration which may include any commission or similar payment which varies in amount.

4

1

This paragraph shall apply if there are normal working hours for an employee when employed under the contract of employment in force on the calculation date, and he is required under that contract to work during those hours on days of the week or at times of the day which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of the said days or times.

2

The amount of a week’s pay shall be the amount of remuneration for the average weekly number of normal working hours (calculated in accordance with sub-paragraph (3)) at the average hourly rate of remuneration (calculated in accordance with sub-paragraph (4)).

3

The average number of weekly hours shall be calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks—

a

where the calculation date is the last day of a week, ending with that week;

b

in any other case, ending with the last complete week before the calculation date.

4

The average hourly rate of remuneration shall be the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks—

a

where the calculation date is the last day of a week, ending with that week;

b

d

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F498

e

where the calculation is for the purposes of Schedule 3, the day immediately preceding the first day of the period of notice required by section 49(1) or, as the case may be, section 49(2);

f

where the calculation is for the purposes of section 53 or 71(2)(b) and the dismissal was with notice, the date on which the employer’s notice was given;

g

where the calculation is for the purposes of section 53 or 71(2)(b) but sub-paragraph (f) does not apply, the effective date of termination;

h

where the calculation is for the purposes of section 73 and by virtue of section 55(5) F499or, as the case may be, (6) a date is to be treated as the effective date of termination for the purposes of section 73(3) which is later than the effective date of termination as defined by section 55(4), the effective date of termination as defined by section 55(4);

i

where the calculation is for the purposes of section 73 but F500neither subsection (5) nor subsection (6) of section 55 applies in relation to the date of termination, the date on which notice would have been given had the conditions referred to in sub-paragraph (2) been fulfilled (whether those conditions were in fact fulfilled or not);

F501ia

where the calculation is for the purposes of section 75A and the dismissal was with notice, the date on which the employer’s notice was given;

ib

where the calculation is for the purposes of section 75A but sub-paragraph (ia) does not apply, the effective date of termination;

j

where the calculation is for the purposes of section 87(2), the day immediately preceding the first of the four or, as the case may be, the six weeks referred to in section 88(1);

k

where the calculation is for the purposes of Schedule 4 and by virtue of section 90(3) a date is to be treated as the relevant date for the purposes of certain provisions of this Act which is later than the relevant date as defined by section 90(1), the relevant date as defined by section 90(1);

l

where the calculation is for the purposes of Schedule 4 but sub-paragraph (k) does not apply, the date on which notice would have been given had the conditions referred to in sub-paragraph (2) been fulfilled (whether those conditions were in fact fulfilled or not).

2

The conditions referred to in sub-paragraphs (1)(i) and (l) are that the contract was terminable by notice and was terminated by the employer giving such notice as is required to terminate that contract by section 49 and that the notice expired on the effective date of termination or on the relevant date, as the case may be.

Maximum amount of week’s pay for certain purposes

P18

1

Notwithstanding the preceding provisions of this Schedule, the amount of a week’s pay for the purpose of calculating—

a

an additional award of compensation (within the meaning of section 71(2)(b), shall not exceed F502£205.00;

C132b

a basic award of compensation (within the meaning of section 72) shall not exceed F502£205.00;

c

a redundancy payment shall not exceed F502£205.00.

P22

The Secretary of State may after a review under section 148 vary the limit referred to in sub-paragraph (1)(a) or (b) or (c) by an order made in accordance with that section.

P23

Without prejudice to the generality of the power to make transitional provision in an order under section 148, such an order may provide that it shall apply in the case of a dismissal in relation to which the effective date of termination for the purposes of this sub-paragraph, as defined by section 55(5) F503or, as the case may be, (6), falls after the order comes into operation, notwithstanding that the effective date of termination, as defined by section 55(4), for the purposes of other provisions of this Act falls before the order comes into operation.

P24

Without prejudice to the generality of the power to make transitional provision in an order under section 148, such an order may provide that it shall apply in the case of a dismissal in relation to which the relevant date for the purposes of this sub-paragraph falls after the order comes into operation, notwithstanding that the relevant date for the purposes of other provisions of this Act falls before the order comes into operation.

Supplemental

9

In any case in which an employee has not been employed for a sufficient period to enable a calculation to be made under any of the foregoing provisions of this Part, the amount of a week’s pay shall be an amount which fairly represents a week’s pay; and in determining that amount the tribunal shall apply as nearly as may be such of the foregoing provisions of this Part as it considers appropriate, and may have regard to such of the following considerations as it thinks fit, that is to say—

a

any remuneration received by the employee in respect of the employment in question;

b

the amount offered to the employee as remuneration in respect of the employment in question;

c

the remuneration received by other persons engaged in relevant comparable employment with the same employer;

d

the remuneration received by other persons engaged in relevant comparable employment with other employers;

C13310

In arriving at an average hourly rate or average weekly rate of remuneration under this Part account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of Schedule 13, a period of employment with the former employer counts as part of the employee’s continuous period of employment with the later employer.

11

Where under this Part account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, then the remuneration or other payments shall be apportioned in such manner as may be just.

12

The Secretary of State may by regulations provide that in prescribed cases the amount of a week’s pay shall be calculated in such manner as the regulations may prescribe.

SCHEDULE 15 Transitional Provisions and Savings

Section 159.

General

1

So far as anything done or treated as done under or for the purposes of any enactment repealed by this Act could have been done under a corresponding provision of this Act it shall not be invalidated by the repeal but shall have effect as if done under or for the purposes of that provision.

2

Where any period of time specified in an enactment repealed by this Act is current immediately before the corresponding provision of this Act comes into force, this Act shall have effect as if the corresponding provision had been in force when that period began to run.

3

Nothing in this Act shall affect the enactments repealed by this Act in their operation in relation to offences committed before the commencement of this Act.

4

Any reference in an enactment or document, whether express or implied, to—

a

an enactment which is re-enacted in a corresponding provision of this Act;

b

an enactment replaced or amended by a provision of the M106Employment Protection Act 1975 which is re-enacted in a corresponding provision of this Act;

c

an enactment in the M107Industrial Relations Act 1971 which was re-enacted with or without amendment in a corresponding provision in Schedule 1 to the M108Trade Union and Labour Relations Act 1974 and that corresponding provision is re-enacted by a corresponding provision of this Act;

shall, except so far as the context otherwise requires, be construed as, or as including, a reference to the corresponding provision of this Act.

5

Paragraphs 1 to 4 have effect subject to the following provisions of this Schedule.

F5046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5057. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Termination of employment

8

Sections 49 and 50 apply in relation to any contract made before the commencement of this Act.

Unfair dismissal

F5069. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

1

Section 54 does not apply to a dismissal from employment under a contract for a fixed term of two years or more, where the contract was made before 28th February 1972 and is not a contract of apprenticeship, and the dismissal consists only of the expiry of that term without its being renewed.

2

Sub-paragraph (1) in its application to an employee treated as unfairly dismissed by virtue of subsection (1) or (2) of section 60 shall have effect as if for the reference to 28th February 1972 there were substituted a reference to 1st June 1976.

Redundancy

F50711. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

Section 81 shall not apply to an employee who immediately before the relevant date (within the meaning of section 90) is employed under a contract of employment for a fixed term of two years or more, if that contract was made before 6th December 1965 and is not a contract of apprenticeship.

F50813. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50914. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insolvency

15

1

Subject to sub-paragraph (2), the provisions of sections 122 and 123 shall apply in relation to an employer who becomes insolvent (within the meaning of section 127) after 19th April 1976, and shall in such a case apply to any debts mentioned in section 122 and to any unpaid relevant contribution (within the meaning of section 123), whether falling due before or after that date.

2

Section 122 shall have effect in relation to any case where the employer became insolvent before 1st February 1978 as if for each reference to £100 there were substituted a reference to £80.

F51016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Computation of period of continuous employment

17

For the purposes of the computation of a period of continuous employment falling to be made before 1st February 1977—

a

paragraphs 3 and 4 of Schedule 13 shall have effect as if for the word “sixteen” there were substituted the word “twenty-one”, and

b

paragraphs 5, 6 and 7 of that Schedule shall not apply.

Legal proceedings

18

Notwithstanding the repeal of any enactment by this Act, the Employment Appeal Tribunal and the industrial tribunals may continue to exercise the jurisdiction conferred on them by or under any enactment which is repealed by this Act with respect to matters arising out of or in connection with the repealed enactments.

F51119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C134 C135SCHEDULE 16 Consequential Amendments

Section 159.

Annotations:

Modifications etc. (not altering text)

C134

The text of Sch. 16 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and, except as specified, does not reflect any amendments or repeals which may have been made prior to 1.2.1991

C135

Sch. 16: amendments and repeals to Trade Union Act 1913 (c. 30) extended (N.I.) (1.7.1992) by S.I. 1992/807 (N.I. 5), art. 67(2)(d); S.R. 1992/212, art. 2(3).

F5121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Trade Union Act 1913 (2 & 3 Geo. 5. c.30)

F5132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Iron and Steel Act 1949 (12, 13 & 14 Geo. 6. c.72)

3

1

In section 40 of the Iron and Steel Act 1949, in subsection (3), for the words from “a tribunal” to the end there are substituted the words “an industrial tribunal.”.

2

In section 41 of the said Act of 1949, in subsection (3), for the words from “a tribunal” to the end there are substituted the words “an industrial tribunal”.

Industrial Training Act 1964 (c.16)

4

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F514

2

For subsection (1) of section 12 of the said Act of 1964 there is substituted the following subsection—

1
A person assessed to levy imposed under this Act may appeal to an industrial tribunal.

Trade Union (Amalgamations, etc.) Act 1964 (c.24)

F5155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transport Act 1968 (c.73)

6

In section 135(4)(b) of the Transport Act 1968, for the words from “a tribunal” to the end there are substituted the words “an industrial tribunal.”.

F5167. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Post Office Act 1969 (c.48)

8

In paragraph 33 of Schedule 9 to the Post Office Act 1969—

a

in sub-paragraph (1) for the words “sections 1 and 2 of the Contracts of Employment Act 1963, Schedule 1” there are substituted the words “sections 49 and 50 and Part VI of the Employment Protection (Consolidation) Act 1978, Schedule 13”, for the words “the said Act of 1963” there are substituted the words “the said Act of 1978”; and for the words “twenty-one hours” there are substituted the words “sixteen hours”;

b

in sub-paragraph (2), for the words “Schedule 1 to the said Act of 1963” there are substituted the words “Schedule 13 to the said Act of 1978”;

c

in sub-paragraph (3), for the words “7 of Schedule 2 to the said Act of 1963” there are substituted the words “10 of Schedule 14 to the said Act of 1978” and for the words from “paragraph 10” to the end there are substituted the words “Schedule 13 to that Act shall be construed as a reference to that Schedule as it has effect by virtue of sub-paragraph (1) above.”;

d

in sub-paragraph (4), for the words “the said Act of 1963” and “Schedule 1” there are substituted respectively the words “the said Act of 1978” and “Schedule 13”;

e

at the end there is added the following sub-paragraph—

6
This paragraph applies notwithstanding the provisions of section 99 of the Employment Protection (Consolidation) Act 1978.

F5179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Tribunals and Inquiries Act (c.62)

F51811

In . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F51912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transport Holding Company Act 1972 (c.14)

13

1

In section 2(3)(c) of the Transport Holding Company Act 1972, for the words from “a tribunal” to the end there are substituted the words “an industrial tribunal.”.

2

In section 2(7) of the said Act of 1972, for the words “a tribunal established under section 12 of the Industrial Training Act 1964” there are substituted the words “an industrial tribunal”.

F52014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

British Library Act 1972 (c.54)

15

In paragraph 13(3)(a) of the Schedule to the British Library Act 1972, for the words “the Acts of 1963 and 1965” there are substituted the words “the Employment Protection (Consolidation) Act 1978”.

Gas Act 1972 (c.60)

16

In section 36(5) of the Gas Act 1972, for the words from “a tribunal” to the end there are substituted the words “an industrial tribunal.”.

Health and Safety at Work etc. Act 1974 (c.37)

17

The following subsection is inserted in section 80 of the Health and Safety at Work etc. Act 1974 after subsection (2)—

2A
Subsection (1) above shall apply to provisions in the Employment Protection (Consolidation) Act 1978 which re-enact provisions previously contained in the Redundancy Payments Act 1965, the Contracts of Employment Act 1972 or the Trade Union and Labour Relations Act 1974 as it applies to provisions contained in Acts passed before or in the same Session as this Act.

Trade Union and Labour Relations Act 1974 (c.52)

F52118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sex Discrimination Act 1975 (c.65)

20 F5231

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

In section 75(5)(c) of the said Act of 1975 for the words “paragraph 21 of Schedule 1 to the Trade Union and Labour Relations Act 1974." there are substituted the words “paragraph 1 of Schedule 9 to the Employment Protection (Consolidation) Act 1978.".

F524 Scottish Development Agency Act 1975 (c.69)

Annotations:

Amendments (Textual)

F524

Sch. 16 para. 21 repealed (1.4.1991) by Enterprise and New Towns (Scotland) Act 1990 (c. 35, SIF 64), s. 38(2), Sch. 5 Pt. I

21

In paragraph 6 of Schedule 3 to the Scottish Development Agency Act 1975, for sub-paragraphs (a), (b) and (c) there are substituted the words “the Employment Protection (Consolidation) Act 1978”.

Welsh Development Agency Act 1975 (c.70)

22

In paragraph 7 of Schedule 2 to the Welsh Development Agency Act 1975, for sub-paragraphs (a), (b) and (c) there are substituted the words “the Employment Protection (Consolidation) Act 1978”.

Employment Protection Act 1975 (c.71)

F52523. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F52624. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Race Relations Act 1976 (c.74)

25

1

The Race Relations Act 1976 shall be amended in accordance with the following provisions of this paragraph.

2

In section 56(2) for the words “paragraph 20 of Schedule 1 to the Trade Union and Labour Relations Act 1974” there are substituted the words “section 75 of the Employment Protection (Consolidation) Act 1978”.

3

In section 66(7) for the words “paragraph 21 of Schedule 1 to the Trade Union and Labour Relations Act 1974” there are substituted the words “paragraph 1 of Schedule 9 to the Employment Protection (Consolidation) Act 1978”.

4

In paragraph 11 of Schedule 2—

a

in sub-paragraph (3) for the words “the Redundancy Payments Act 1965” there are substituted the words “Part VI of the Employment Protection (Consolidation) Act 1978”;

b

for sub-paragraph (4)(a) and (b) there is substituted the following paragraph—

a
the Employment Protection (Consolidation) Act 1978 except Part VI of that Act;

Development of Rural Wales Act 1976 (c.75)

26

In both paragraph 6 of Schedule 2 and paragraph 6 of Schedule 6 to the Development of Rural Wales Act 1976, for sub-paragraphs (a), (b) and (c) there are substituted the words “the Employment Protection (Consolidation) Act 1978”.

27 F5271

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5282

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Aircraft and Shipbuilding Industries Act 1977 (c.3)

28

In both section 49(10) and section 50(3)(b) of the Aircraft and Shipbuilding Industries Act 1977, for the words “a tribunal established under section 12 of the Industrial Training Act 1964 or, as the case may require” there are substituted the words “an industrial tribunal or, as the case may require, a tribunal established under”.

New Towns (Scotland) Act 1977 (c.16)

30

In section 3(6) of the New Towns (Scotland) Act 1977 for paragraphs (a), (b) and (c) there are substituted the words “Parts I, IV, V and VI of the Employment Protection (Consolidation) Act 1978”.

F53031. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

House of Commons (Administration) Act 1978 (c.36)

34

In paragraph 1 of Schedule 2 to the House of Commons (Administration) Act 1978, after the words “the Employment Protection Act 1975” there are inserted the words “and section 139 of the Employment Protection (Consolidation) Act 1978”.

C136Schedule 17. Repeals

Section 159.

Annotations:

Modifications etc. (not altering text)

C136

The text of s. 159(2)(3) and Sch. 17 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

Chapter	Short title	Extent of repeal
1964 c. 16.	Industrial Training Act 1964.	Section 12(2B), (3) and (4).
1965 c. 62.	Redundancy Payments Act 1965.	Sections 1 to 26.
		Sections 30 to 44.
		Sections 46 to 55 except section 55(6)(b).
		Sections 56 to 58.
		In section 59, subsection (2) and in subsection (3) the words “except the last preceding section”.
		Schedules 1 to 9.
1967 c. 17.	Iron and Steel Act 1967.	In section 31, in subsection (3), paragraph (c) and all the words following paragraph (c), and subsections (4)(b) and (6).
1967 c. 28.	Superannuation (Miscellaneous Provisions) Act 1967.	Section 9.
1968 c. 13.	National Loans Act 1968.	In Schedule 1, the paragraph relating to the Redundancy Payments Act 1965.
1969 c. 8.	Redundancy Rebates Act 1969.	The whole Act.
1969 c. 48.	Post Office Act 1969.	In Schedule 9, paragraph 34.
1970 c. 41.	Equal Pay Act 1970.	Section 2(7).
1971 c. 75.	Civil Aviation Act 1971.	In Schedule 9, paragraph 2.
1972 c. 11.	Superannuation Act 1972.	In Schedule 6, paragraphs 54 and 55.
1972 c. 53.	Contracts of Employment Act 1972.	The whole Act.
1972 c. 54.	British Library Act 1972.	In paragraph 13(2) of the Schedule, the definition of “the Act of 1963”.
1972 c. 58.	National Health Service (Scotland) Act 1972.	In Schedule 6, paragraph 130.
1973 c. 32.	National Health Service Reorganisation Act 1973.	In Schedule 4, paragraph 106.
1973 c. 38.	Social Security Act 1973.	In Schedule 27, paragraphs 54 to 59.
1973 c. 50.	Employment and Training Act 1973.	In Schedule 2 in Part I, paragraph 15.
1974 c. 52.	Trade Union and Labour Relations Act 1974.	In section 1(2), paragraphs (b) and (c) and, in paragraph (d), the references to sections 146, 148, 149, 150 and 151 of the 1971 Act.
		In section 30(1), the definitions of “dismissal procedures agreement”, “position” and “job”.
		In Schedule 1, paragraphs 4 to 16, 17(1), 18, 20 to 27 and 30, in paragraph 32, sub-paragraphs (1)(b) and (2)(b) to (e) and, in paragraph 33. sub-paragraphs (3)(c) and (d) and (4A).
		In Schedule 3, paragraph 16.
		In Schedule 4, paragraphs 1, 3 and 6(4).
1975 c. 18.	Social Security (Consequential Provisions) Act 1975.	In Schedule 2, paragraphs 19 to 23.
1975 c. 60.	Social Security Pensions Act 1975.	Section 30(5).
1975 c. 71.	Employment Protection Act 1975.	Part II except section 40.
		Section 108(2) to (8).
		Section 109.
		Section 112.
		In section 118(2), in paragraph (a) the words “section 22 above or” and “section 28 or, as the case may be,” and paragraphs (b) and (c).
		In section 119—
		subsection (2);
		in subsection (3) the figures from “22” to “70”;
		in subsection (4) the figures from “22” to “81”;
		in subsection (5) the figures from “22” to “81”;
		in subsection (7) the figures “22” and “79”;
		subsections (8) to (11);
		in subsection (12) the figures from “59” to “81”.
		Section 120.
		In section 121—
		in subsection (1), the reference to sections 47 and 63 to 69;
		in subsection (5), the reference to sections 47(3) and (4) and 68(3) and (4);
		subsection (8).
		In section 122(1), the words “Schedule 1 to the Contracts of Employment Act 1972 and Parts I and II of Schedule 1 to the 1974 Act”; and in paragraph (d), the words “paragraph 21(5)(c) of Schedule 1 to the 1974 Act and”.
		In section 122, subsection (3), in subsection (4) the definition of “civil employment claim” and in subsection (5) the words from “and of the Redundancy” to “employment claim”.
		In section 123(2)(b) the words “28 or”.
		In section 124, subsections (2) to (4).
		In section 126—
		in subsection (1), the definitions of “guarantee payment” and “maternity pay”;
		subsections (3) and (5).
		In section 127—
		in subsection (1), paragraphs (c) and (d);
		in subsection (3)(g), the words from “the following” to “also of”.
		In section 128—
		in subsection (1), the words “or of the 1974 Act so far as it relates to unfair dismissal” and “and the 1974 Act”;
		subsection (2);
		in subsection (3), the words “and the relevant provisions of the 1974 Act” in both places where they occur, and the words “or the relevant provisions of the 1974 Act”.
		Section 129(2).
		Schedules 2 to 6.
		In Schedule 12—
		in paragraph 1, the words from “and” to the end;
		paragraphs 8 to 12.
		In Schedule 16—
		Parts I and II;
		in Part III, paragraphs 8 to 30 and 34;
		in Part IV, paragraph 14.
		In Schedule 17, paragraphs 7 to 10, 16 and 17.
1976 c. 7.	Trade Union and Labour Relations (Amendment) Act 1976.	Section 1(e).
		Section 3(5) and (6).
1976 c. 68.	New Towns (Amendment) Act 1976.	In section 13(5), the words “sections 1 and 2 of”.
1976 c. 71.	Supplementary Benefits Act 1976.	In Schedule 7, paragraph 40.
1976 c. 74.	Race Relations Act 1976.	In Schedule 3, paragraphs 1(2), (3) and (4).
1976 c. 79.	Dock Work Regulation Act 1976.	In section 14, subsections (1) to (5) and in subsection (6), paragraph (a) and so much of paragraph (b) as relates to sections 22, 29, 61, 64, 65 and 70 of the Employment Protection Act 1975.
		In Schedule 1, paragraph 17(2).
1977 c. 5.	Social Security (Miscellaneous Provsisions) Act 1977.	Section 16.
1977 c. 22.	Redundancy Rebates Act 1977.	The whole Act.
1977 c. 38.	Administration of Justice Act 1977.	Section 6.
		Section 32(11).
1977 c. 48.	Housing (Homeless Persons) Act 1977.	In section 14(4)(b), the words “sections 1 and 2 of”.

Employment Protection (Consolidation) Act 1978

F3Part I Employment Particulars

F2Written particulars of employment

F46C24C251 Employer’s duty to give statement of employment particulars.

1

2

a

b

c

3

a

b

c

d

i

ii

iii

e

f

g

h

j

k

i

ii

iii

iv

4

a

b

F47C262 Section 1: supplementary.

1

2

a

i

ii

b

3

a

b

4

a

b

c

d

5

6

F482A Particulars of disciplinary procedures not required where less than 20 employees.

1

a

b

c

2

F49C273 Statement to include note about disciplinary procedures.

1

a

i

ii

b

i

ii

c

i

ii

d

2

3

a

b

c

4

F50C28C29C304 Employer’s duty to give statement of changes.

C311

a

b

2

a

i

ii

b

F46 C24 C251 Employer’s duty to give statement of employment particulars.

F47 C262 Section 1: supplementary.

F49 C273 Statement to include note about disciplinary procedures.

F50 C28 C29 C304 Employer’s duty to give statement of changes.

F53 C336 Power of Secretary of State to require particulars of further matters.