(1)The Secretary of State [F1and the Lord Chancellor, acting jointly,] may by order—
(a)provide that any provision of this Act to which this section applies and which is specified in the order shall not apply to persons, or to employments, of such classes as may be prescribed in the order, or
(b)provide that any provision of this Act to which this section applies shall apply to persons or employments of such classes as may be prescribed in the order subject to such exceptions and modifications as may be so prescribed.
(2)This section applies to sections 3, 8, 16 and 17 F2....
Textual Amendments
F1Words in s. 40(1) inserted (1.12.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 48(1), 148, Sch. 8 para. 38; S.I. 2007/2709, art. 4
F2Words in s. 40(2) omitted (6.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 1 para. 8; S.I. 2014/253, art. 3(f)
(1)Any power conferred by this Act on a Minister of the Crown to make an order, and any power conferred by this Act to make regulations or rules, is exercisable by statutory instrument.
[F3(1A)No recommendation may be made to Her Majesty to make an Order in Council under section 38(4) unless a draft of the Order in Council has been laid before Parliament and approved by a resolution of each House of Parliament.]
(2)[F4A statutory instrument containing—
(a)an order under] section 3 F5... [F6, 12A(12)] F5... or 40,
[F7[F8(b)regulations under] section [F94, 28,] 37N, 37O or 37Q(5),] [F10, or
(c)regulations under section 37QB that amend or repeal provision made by an Act,
may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]
(3)A statutory instrument containing—
(a)an order made by a Minister of the Crown under any other provision of this Act except Part II of Schedule 2, or
(b)[F11any other regulations] or rules made under this Act,
is subject to annulment in pursuance of a resolution of either House of Parliament.
(4)Any power conferred by this Act which is exercisable by statutory instrument includes power to make such incidental, supplementary or transitional provision as appears to the Minister exercising the power to be necessary or expedient.
[F12(5)This section does not apply in relation to Procedure Rules (the procedure for which is provided for by Schedule A1).]
Textual Amendments
F3S. 41(1A) inserted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 25(2); S.I. 2023/1194, reg. 2(f)
F4Words in s. 41(2) substituted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 25(3)(a); S.I. 2023/1194, reg. 2(f)
F5Words in s. 41(2) omitted (7.11.2023) by virtue of Judicial Review and Courts Act 2022 (c. 35), ss. 35(4)(a), 51(4) (with s. 36); S.I. 2023/1194, reg. 2(b) (with reg. 3)
F6Word in s. 41(2) inserted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 3 para. 4 (with s. 24(5), Sch. 3 para. 4(2)); S.I. 2014/253, art. 3(h)
F7Words in s. 41(2) inserted (6.4.2016) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 150(5)(b), 164(1) (with s. 150(8)); S.I. 2016/321, reg. 3(d)
F8Words in s. 41(2) substituted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 25(3)(b); S.I. 2023/1194, reg. 2(f)
F9Words in s. 41(2) inserted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), ss. 35(4)(b), 51(4) (with s. 36); S.I. 2023/1194, reg. 2(b) (with reg. 3)
F10Words in s. 41(2) substituted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 25(3)(c); S.I. 2023/1194, reg. 2(f)
F11Words in s. 41(3)(b) substituted (6.4.2016) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 150(5)(c), 164(1) (with s. 150(8)); S.I. 2016/321, reg. 3(d)
F12S. 41(5) inserted (7.11.2023) by Judicial Review and Courts Act 2022 (c. 35), s. 51(4), Sch. 5 para. 25(4); S.I. 2023/1194, reg. 2(f)
(1)In this Act [F13 (except where otherwise expressly provided)] —
[F14“ACAS” means the Advisory, Conciliation and Arbitration Service,]
“the Appeal Tribunal” means the Employment Appeal Tribunal,
“Appeal Tribunal procedure rules” shall be construed in accordance with section 30(1),
“appointed member” shall be construed in accordance with section 22(1)(c),
[F15“Certification Officer” shall be construed in accordance with section 254 of the Trade Union and Labour Relations (Consolidation) Act 1992,]
“conciliation officer” means an officer designated by [F16ACAS] under section 211 of the M1Trade Union and Labour Relations (Consolidation) Act 1992,
“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing,
“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, where the employment has ceased, was) employed,
“employers’ association” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992,
“employment” means employment under a contract of employment and “employed” shall be construed accordingly,
“ [F17employment tribunal] procedure regulations” shall be construed in accordance with section 7(1),
[F18“representative” shall be construed in accordance with section 6(1) (in Part 1) or section 29(1) (in Part 2),]
“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,
“successor”, in relation to the employer of an employee, means (subject to subsection (2)) 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 the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part, and
“trade union” has the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
(2)The definition of “successor” in subsection (1) 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.
(3)For the purposes of this Act any two employers shall be treated as associated if—
(a)one is a company of which the other (directly or indirectly) has control, or
(b)both are companies of which a third person (directly or indirectly) has control;
and “associated employer” shall be construed accordingly.
Textual Amendments
F13Words in s. 42(1) inserted (6.4.2016) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 150(6), 164(1) (with s. 150(8)); S.I. 2016/321, reg. 3(d)
F14Words in s. 42(1) inserted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 1 para. 9(a); S.I. 2014/253, art. 3(f)
F15S. 42(1): definition of "Certification Officer" inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 49(8), 59; S. I. 2005/872, art. 4, Sch. (with arts. 5-21)
F16Words in s. 42(1) substituted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 1 para. 9(b); S.I. 2014/253, art. 3(f)
F17Words in s. 42(1) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1
F18Words in s. 42(1) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 21(4), 103(2)
Marginal Citations