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Employment Rights Act 1996

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E+W+S

Employment Rights Act 1996

1996 CHAPTER 18

An Act to consolidate enactments relating to employment rights.

[22nd May 1996]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Extent Information

E1For the extent of this Act generally, see s. 244; in particular, provisions which refer to shop workers and betting workers extend to England and Wales only

Modifications etc. (not altering text)

C1Act restricted (22.8.1996) by 1996 c. 17, ss. 21, 46 (with s. 38)

Act restricted (25.11.1998 for specified purposes and otherwise 8.5.2000) by 1998 c. 45, s. 6, Sch. 3 para. 10; S.I. 1998/2952, art. 2; S.I. 2000/1173, art. 2(2)(b)

C2Act modified (E.W.) (11.9.1998) by 1998 c. 18, ss. 54(2), 55(2), Sch. 4 para. 9(2)

Act modified (25.11.1998 for specified purposes and otherwise 8.5.2000) by 1998 c. 45, s. 6, Sch. 3 para. 9(3); S.I. 1998/2952, art. 2; S.I. 2000/1173, art. 2(2)(b)

Act modified (27.9.1999) by 1999 c. 22, ss. 105, 108(3), Sch. 14 Pt. II paras. 2(1)(b), 4(b), 7(2), Pt. V para. 33(7)(b) (with Sch. 14 para. 7(2))

Act modified (1.4.2000) by S.I. 2000/935, art. 3

Act modified (S.) (1.4.2000) by 2000 asp 1, s. 10, Sch. 2 para. 8(3); S.S.I. 2000/10, art. 2(3)

Act modified (12.1.2000) by 1999 c. 29, s. 410(5) (with Sch. 12 para. 9(1)); S.I. 1999/3434, art. 2

Act modified (3.7.2000) by 1980 c. 66, s. 266B(7) (as inserted (3.7.2000) by 1999 c. 29, s. 265 (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c), Sch. Pt. 3)

Act modified (1.11.2000) by 2000 c. 27, s. 3(8), Sch. 3 para. 9; S.I. 2000/2917, art. 2

Act modified (E.W.) (30.11.2000) by 2000 c. 43, ss. 21(4)-(6), 22(5)-(8), 23, 80(3)

Act modified (15.1.2001) by 2000 c. 38, ss. 240, 250, Sch. 26 para. 12(b); S.I. 2000/3376, art. 2

Act modified (30.1.2001) by 2000 c. 38, s. 211, Sch. 15 para. 11; S.I. 2001/57, art. 2, Sch. 1

Act modified (30.1.2001) by 2000 c. 38, s. 218, Sch. 19 para. 12(b); S.I. 2001/57, art. 2, Sch. 1

Act modified (1.2.2001) by 2000 c. 38, s. 215(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 41(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 217, Sch. 18 para. 16(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 220, Sch. 21 para. 13(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (1.2.2001) by 2000 c. 38, s. 240, Sch. 25 para. 12; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings in Sch. 2 Pt. II)

Act modified (S.) (prosp.) by 2001 asp 10, ss. 86(3), 113(1)

C3Act applied (1.9.1999) by 1998 c. 31, s. 54, Sch. 16 para. 27(3)(b) (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1

Act applied (1.9.1999) by 1998 c. 31, s. 55, Sch. 17 paras. 24(4)(b), 27 (with ss. 138(9), 144(6)); S.I. 1999/2323, art. 2(1), Sch. 1

Act applied (with modifications) (1.9.1999) by S.I. 1999/2277, art. 5(1)

Act applied (S.) (8.9.2000) by 2000 asp 10, s. 29, Sch. 4 para. 6(3) (with s. 32); S.S.I. 2000/312, art. 2

Act applied (6.11.2000) by 2000 c. 26, s. 118(4)(5); S.I. 2000/2957, art. 2(1), Sch. 1

Act applied (with modifications) (8.12.2002) by The Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788), reg. 30(2)(b)

C4Act: power to modify conferred (25.2.1999 for certain purposes and otherwise 1.4.1999) by 1999 c. 2, ss. 15(1)(2)(b), 28(2); S.I. 1999/527, art. 2(b), Sch. 2

Act: power to amend conferred (25.10.1999) by 1999 c. 26, s. 19(3)(f); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I

Act: power to apply conferred (25.10.1999) by 1999 c. 26, s. 23(1)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I

Act: power to amend or apply conferred (8.7.2002) by Employment Act 2002 (c. 22), ss. 45(3)(d)(i), 55(2)

C5Act amended (E.W.) (1.4.2001) by 2000 c. 43, s. 4, Sch. 1 para. 3(5); S.I. 2001/919, art. 2(e) (with art. 3)

C7Act: modified (8.6.2005 for certain purposes, otherwise 24.7.2005) by Railways Act 2005 (c. 14), ss. 1, 12, 60, Sch. 2 para. 9(1)(b); S.I. 2005/1444, art. 2, Sch. 1; S.I. 2005/1909, art. 2, Sch.

Commencement Information

I1Act not in force at Royal Assent: see s. 243

I2This Act has effect with the omission of s. 219(3)(d)(4)(a)(iv) until the relevant commencement date as defined by Sch. 2 Part II para. 18(2) of this Act. See Sch. 2 Part II para. 18.

I3This Act has effect with the omission of sections 46, 58, 59, 60, and 102 until the relevant commencement date as defined by Sch. 2 Part II para 15(2) of this Act. See Sch. 2 Part II para. 15.

Part IE+W+S Employment particulars

Right to statements of employment particularsE+W+S

1 Statement of initial employment particulars.E+W+S

(1)Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.

(2)The statement may (subject to section 2(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.

(3)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).

(4)The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment 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 he 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.

(5)Subsection (4)(d)(iii) does not apply to an employee of a body or authority if—

(a)the employee’s pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act, and

(b)any such provision requires the body or authority to give to a new employee information concerning the employee’s pension rights or the determination of questions affecting those rights.

2 Statement of initial particulars: supplementary.E+W+S

(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 (4) of that section, or under any of the other paragraphs of subsection (3) or (4) of that section, that fact shall be stated.

(2)A statement under section 1 may refer the employee for particulars of any of the matters specified in subsection (4)(d)(ii) and (iii) of that section to the provisions of some other document which is reasonably accessible to the employee.

(3)A statement under section 1 may refer the employee for particulars of either of the matters specified in subsection (4)(e) of that section to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

(4)The particulars required by section 1(3) and (4)(a) to (c), (d)(i), (f) and (h) shall be included in a single document.

(5)Where before the end of the period of two months after the beginning of an employee’s employment the 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 even if his employment ends before the end of the period within which the statement is required to be given.

3 Note about disciplinary procedures and pensions.E+W+S

(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 specifying such rules which is reasonably accessible to the employee,

[F1(aa)specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee,]

F1(b)specifying (by description or otherwise)—

(i)a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him [F2or any decision to dismiss him]F2 , 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, and

(c)where there are further steps consequent on any such application, explaining those steps or referring to the provisions of a document explaining them which is reasonably accessible to the employee.

(2)Subsection (1) does not apply to rules, disciplinary decisions, [F3decisions to dismiss]F3 grievances or procedures relating to health or safety at work.

(3)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The note shall also state whether there is in force a contracting-out certificate (issued in accordance with Chapter I of Part III of the M1Pension Schemes Act 1993) stating that the employment is contracted-out employment (for the purposes of that Part of that Act).

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Amendments (Textual)

F3Words in s. 3(2) inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 35(4), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

F4S. 3(3)(4) ceased to have effect (1.10.2004) and repealed (prosp.) by Employment Act 2002 (c. 22), ss. 36, 54, 55(2), Sch. 8; S.I. 2004/1717, art. 2(2) (subject to art. 3)

Marginal Citations

4 Statement of changes.E+W+S

(1)If, after the material date, 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 give to the employee a written statement containing particulars of the change.

(2)For the purposes of subsection (1)—

(a)in relation to a matter particulars of which are included or referred to in a statement given under section 1 otherwise than in instalments, the material date is the date to which the statement relates,

(b)in relation to a matter particulars of which—

(i)are included or referred to in an instalment of a statement given under section 1, or

(ii)are required by section 2(4) to be included in a single document but are not included in an instalment of a statement given under section 1 which does include other particulars to which that provision applies,

the material date is the date to which the instalment relates, and

(c)in relation to any other matter, the material date is the date by which a statement under section 1 is required to be given.

(3)A statement under subsection (1) shall be given at the earliest opportunity and, in any event, not later than—

(a)one month after the change in question, or

(b)where that 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.

(4)A statement under subsection (1) may refer the employee to the provisions of some other document which is reasonably accessible to the employee for a change in any of the matters specified in sections 1(4)(d)(ii) and (iii) and 3(1)(a) and (c).

(5)A statement under subsection (1) may refer the employee for a change in either of the matters specified in section 1(4)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee.

(6)Where, after an employer has given to an employee a statement under section 1, either—

(a)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

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

and subsection (7) applies in relation to the change, the person who is the employer immediately after the change is not 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.

(7)This subsection applies in relation to a change if it 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 or referred to in the statement under section 1.

(8)A statement under subsection (1) which informs an employee of a change such as is referred to in subsection (6)(b) shall specify the date on which the employee’s period of continuous employment began.

5 Exclusion from rights to statements.E+W+S

(1)Sections 1 to 4 apply to an employee who at any time comes or ceases to come within the exceptions from those sections provided by [F5section] 199, and under section 209, as if his employment with his employer terminated or began at that time.

(2)The fact that section 1 is directed by subsection (1) to apply to an employee as if his employment began on his ceasing to come within the exceptions referred to in that subsection does not affect the obligation under section 1(3)(b) to specify the date on which his employment actually began.

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Amendments (Textual)

F5Words in s. 5(1) substituted (25.10.1999) by 1999 c. 26, s. 32(3); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 7(2))

6 Reasonably accessible document or collective agreement.E+W+S

In sections 2 to 4 references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

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

(b)is made reasonably accessible to the employee in some other way.

7 Power to require particulars of further matters.E+W+S

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.

[F67A Use of alternative documents to give particularsE+W+S

(1)Subsections (2) and (3) apply where—

(a)an employer gives an employee a document in writing in the form of a contract of employment or letter of engagement,

(b)the document contains information which, were the document in the form of a statement under section 1, would meet the employer’s obligation under that section in relation to the matters mentioned in subsections (3) and (4)(a) to (c), (d)(i), (f) and (h) of that section, and

(c)the document is given after the beginning of the employment and before the end of the period for giving a statement under that section.

(2)The employer’s duty under section 1 in relation to any matter shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under that section, would meet the employer’s obligation under that section in relation to that matter.

(3)The employer’s duty under section 3 shall be treated as met if the document given to the employee contains information which, were the document in the form of a statement under section 1 and the information included in the form of a note, would meet the employer’s obligation under section 3.

(4)For the purposes of this section a document to which subsection (1)(a) applies shall be treated, in relation to information in respect of any of the matters mentioned in section 1(4), as specifying the date on which the document is given to the employee as the date as at which the information applies.

(5)Where subsection (2) applies in relation to any matter, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date in relation to that matter for the purposes of section 4(1).

(6)Where subsection (3) applies, the date on which the document by virtue of which that subsection applies is given to the employee shall be the material date for the purposes of section 4(1) in relation to the matters of which particulars are required to be given under section 3.

(7)The reference in section 4(6) to an employer having given a statement under section 1 shall be treated as including his having given a document by virtue of which his duty to give such a statement is treated as met.

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Amendments (Textual)

7B Giving of alternative documents before start of employmentE+W+S

A document in the form of a contract of employment or letter of engagement given by an employer to an employee before the beginning of the employee’s employment with the employer shall, when the employment begins, be treated for the purposes of section 7A as having been given at that time.]

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Amendments (Textual)

Right to itemised pay statementE+W+S

8 Itemised pay statement.E+W+S

(1)An employee has 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, a written itemised pay statement.

(2)The statement shall contain particulars of—

(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.E+W+S

(1)A pay statement given in accordance with section 8 need not contain separate particulars of a fixed deduction if—

(a)it contains instead an aggregate amount of fixed deductions, including that deduction, and

(b)the employer has given to the employee, at or before the time at which the pay statement is given, a standing statement of fixed deductions which satisfies subsection (2).

(2)A standing statement of fixed deductions satisfies this subsection if—

(a)it is in writing,

(b)it contains, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i)the amount of the deduction,

(ii)the intervals at which the deduction is to be made, and

(iii)the purpose for which it is made, and

(c)it is (in accordance with subsection (5)) effective at the date on which the pay statement is given.

(3)A standing statement of fixed deductions may be amended, whether by—

(a)addition of a new deduction,

(b)a change in the particulars, or

(c)cancellation of an existing deduction,

by notice in writing, containing particulars of the amendment, given by the employer to the employee.

(4)An employer who has given to an employee a standing statement of fixed deductions shall—

(a)within the period of twelve months beginning with the date on which the first standing statement was given, and

(b)at intervals of not more than twelve months afterwards,

re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (3).

(5)For the purposes of subsection (2)(c) a standing statement of fixed deductions—

(a)becomes effective on the date on which it is given to the employee, and

(b)ceases to be effective at the end of the period of twelve months beginning with that date or, where it is re-issued in accordance with subsection (4), with the end of the period of twelve months beginning with the date of the last re-issue.

10 Power to amend provisions about pay and standing statements.E+W+S

The Secretary of State may by order—

(a)vary the provisions of sections 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 subsections (4) and (5) of section 9 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.

EnforcementE+W+S

11 References to [F7employment tribunals].E+W+S

(1)Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an [F7employment 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 section concerned.

(2)Where—

(a)a statement purporting to be a statement under section 1 or 4, or a pay statement or a standing statement of fixed deductions purporting to comply with section 8 or 9, has been given to an employee, and

(b)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 the question to be referred to and determined by an [F7employment tribunal].

(3)For the purposes of this section—

(a)a question as to the particulars which ought to have been included in the 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 M2Pension Schemes Act 1993), and

(b)a question as to the particulars which ought to have been included in a pay statement or standing statement of fixed deductions does not include a question solely as to the accuracy of an amount stated in any such particulars.

(4)An [F7employment tribunal] shall not consider 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—

(a)before the end of the period of three months beginning with the date on which the employment ceased, or

(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.

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Amendments (Textual)

F7Words in s. 11(1)(2)(4) and sidenote to s. 11 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C10S. 11: power to apply conferred (1.4.1999) by 1998 c. 39, s. 12(4)(a) (with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Marginal Citations

12 Determination of references.E+W+S

(1)Where, on a reference under section 11(1), an [F8employment tribunal] determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4, 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.

(2)On determining a reference under section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an [F8employment tribunal] may—

(a)confirm the particulars as included or referred to in the statement given by the employer,

(b)amend those particulars, or

(c)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.

(3)Where on a reference under section 11 an [F8employment tribunal] finds—

(a)that an employer has failed to give an employee any pay statement in accordance with section 8, or

(b)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,

the tribunal shall make a declaration to that effect.

(4)Where on a reference in the case of which subsection (3) applies 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.

(5)For the purposes of subsection (4) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement or standing statement of fixed deductions, the particulars of the deduction required by section 8 or 9.

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Amendments (Textual)

F8Words in s. 12(1)(2)(3) 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

Modifications etc. (not altering text)

C11S. 12: power to apply conferred (1.4.1999) by 1998 c. 39, s. 12(4)(a)(with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Part IIE+W+S Protection of wages

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C12Pt. II(ss. 13-27) modified (1.4.1999) by 1998 c. 39, s. 18(1)(a)(2)(with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Deductions by employerE+W+S

13 Right not to suffer unauthorised deductions.E+W+S

(1)An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3)Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4)Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5)For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6)For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7)This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

14 Excepted deductions.E+W+S

(1)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

(a)an overpayment of wages, or

(b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2)Section 13 does not apply to a deduction from a worker’s wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b)otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

(5)Section 13 does not apply to a deduction from a worker’s wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker’s having taken part in that strike or other action.

(6)Section 13 does not apply to a deduction from a worker’s wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Payments to employerE+W+S

15 Right not to have to make payments to employer.E+W+S

(1)An employer shall not receive a payment from a worker employed by him unless—

(a)the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the payment.

(2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3)For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4)For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5)Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker’s employer.

16 Excepted payments.E+W+S

(1)Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

(a)an overpayment of wages, or

(b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2)Section 15 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3)Section 15 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker’s having taken part in that strike or other action.

(4)Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

Cash shortages and stock deficiencies in retail employmentE+W+S

17 Introductory.E+W+S

(1)In the following provisions of this Part—

  • cash shortage” means a deficit arising in relation to amounts received in connection with retail transactions, and

  • stock deficiency” means a stock deficiency arising in the course of retail transactions.

(2)In the following provisions of this Part “retail employment”, in relation to a worker, means employment involving (whether or not on a regular basis)—

(a)the carrying out by the worker of retail transactions directly with members of the public or with fellow workers or other individuals in their personal capacities, or

(b)the collection by the worker of amounts payable in connection with retail transactions carried out by other persons directly with members of the public or with fellow workers or other individuals in their personal capacities.

(3)References in this section to a “retail transaction” are to the sale or supply of goods or the supply of services (including financial services).

(4)References in the following provisions of this Part to a deduction made from wages of a worker in retail employment, or to a payment received from such a worker by his employer, on account of a cash shortage or stock deficiency include references to a deduction or payment so made or received on account of—

(a)any dishonesty or other conduct on the part of the worker which resulted in any such shortage or deficiency, or

(b)any other event in respect of which he (whether or not together with any other workers) has any contractual liability and which so resulted,

in each case whether or not the amount of the deduction or payment is designed to reflect the exact amount of the shortage or deficiency.

(5)References in the following provisions of this Part to the recovery from a worker of an amount in respect of a cash shortage or stock deficiency accordingly include references to the recovery from him of an amount in respect of any such conduct or event as is mentioned in subsection (4)(a) or (b).

(6)In the following provisions of this Part “pay day”, in relation to a worker, means a day on which wages are payable to the worker.

18 Limits on amount and time of deductions.E+W+S

(1)Where (in accordance with section 13) the employer of a worker in retail employment makes, on account of one or more cash shortages or stock deficiencies, a deduction or deductions from wages payable to the worker on a pay day, the amount or aggregate amount of the deduction or deductions shall not exceed one-tenth of the gross amount of the wages payable to the worker on that day.

(2)Where the employer of a worker in retail employment makes a deduction from the worker’s wages on account of a cash shortage or stock deficiency, the employer shall not be treated as making the deduction in accordance with section 13 unless (in addition to the requirements of that section being satisfied with respect to the deduction)—

(a)the deduction is made, or

(b)in the case of a deduction which is one of a series of deductions relating to the shortage or deficiency, the first deduction in the series was made,

not later than the end of the relevant period.

(3)In subsection (2) “the relevant period” means the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

19 Wages determined by reference to shortages etc.E+W+S

(1)This section applies where—

(a)by virtue of an agreement between a worker in retail employment and his employer, the amount of the worker’s wages or any part of them is or may be determined by reference to the incidence of cash shortages or stock deficiencies, and

(b)the gross amount of the wages payable to the worker on any pay day is, on account of any such shortages or deficiencies, less than the gross amount of the wages that would have been payable to him on that day if there had been no such shortages or deficiencies.

(2)The amount representing the difference between the two amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part as a deduction from the wages payable to the worker on that day made by the employer on account of the cash shortages or stock deficiencies in question.

(3)The second of the amounts referred to in subsection (1)(b) shall be treated for the purposes of this Part (except subsection (1)) as the gross amount of the wages payable to him on that day.

(4)Accordingly—

(a)section 13, and

(b)if the requirements of section 13 and subsection (2) of section 18 are satisfied, subsection (1) of section 18,

have effect in relation to the amount referred to in subsection (2) of this section.

20 Limits on method and timing of payments.E+W+S

(1)Where the employer of a worker in retail employment receives from the worker a payment on account of a cash shortage or stock deficiency, the employer shall not be treated as receiving the payment in accordance with section 15 unless (in addition to the requirements of that section being satisfied with respect to the payment) he has previously—

(a)notified the worker in writing of the worker’s total liability to him in respect of that shortage or deficiency, and

(b)required the worker to make the payment by means of a demand for payment made in accordance with the following provisions of this section.

(2)A demand for payment made by the employer of a worker in retail employment in respect of a cash shortage or stock deficiency—

(a)shall be made in writing, and

(b)shall be made on one of the worker’s pay days.

(3)A demand for payment in respect of a particular cash shortage or stock deficiency, or (in the case of a series of such demands) the first such demand, shall not be made—

(a)earlier than the first pay day of the worker following the date when he is notified of his total liability in respect of the shortage or deficiency in pursuance of subsection (1)(a) or, where he is so notified on a pay day, earlier than that day, or

(b)later than the end of the period of twelve months beginning with the date when the employer established the existence of the shortage or deficiency or (if earlier) the date when he ought reasonably to have done so.

(4)For the purposes of this Part a demand for payment shall be treated as made by the employer on one of a worker’s pay days if it is given to the worker or posted to, or left at, his last known address—

(a)on that pay day, or

(b)in the case of a pay day which is not a working day of the employer’s business, on the first such working day following that pay day.

(5)Legal proceedings by the employer of a worker in retail employment for the recovery from the worker of an amount in respect of a cash shortage or stock deficiency shall not be instituted by the employer after the end of the period referred to in subsection (3)(b) unless the employer has within that period made a demand for payment in respect of that amount in accordance with this section.

21 Limit on amount of payments.E+W+S

(1)Where the employer of a worker in retail employment makes on any pay day one or more demands for payment in accordance with section 20, the amount or aggregate amount required to be paid by the worker in pursuance of the demand or demands shall not exceed—

(a)one-tenth of the gross amount of the wages payable to the worker on that day, or

(b)where one or more deductions falling within section 18(1) are made by the employer from those wages, such amount as represents the balance of that one-tenth after subtracting the amount or aggregate amount of the deduction or deductions.

(2)Once an amount has been required to be paid by means of a demand for payment made in accordance with section 20 on any pay day, that amount shall not be taken into account under subsection (1) as it applies to any subsequent pay day, even though the employer is obliged to make further requests for it to be paid.

(3)Where in any legal proceedings the court finds that the employer of a worker in retail employment is (in accordance with section 15 as it applies apart from section 20(1)) entitled to recover an amount from the worker in respect of a cash shortage or stock deficiency, the court shall, in ordering the payment by the worker to the employer of that amount, make such provision as appears to the court to be necessary to ensure that it is paid by the worker at a rate not exceeding that at which it could be recovered from him by the employer in accordance with this section.

22 Final instalments of wages.E+W+S

(1)In this section “final instalment of wages”, in relation to a worker, means—

(a)the amount of wages payable to the worker which consists of or includes an amount payable by way of contractual remuneration in respect of the last of the periods for which he is employed under his contract prior to its termination for any reason (but excluding any wages referable to any earlier such period), or

(b)where an amount in lieu of notice is paid to the worker later than the amount referred to in paragraph (a), the amount so paid,

in each case whether the amount in question is paid before or after the termination of the worker’s contract.

(2)Section 18(1) does not operate to restrict the amount of any deductions which may (in accordance with section 13(1)) be made by the employer of a worker in retail employment from the worker’s final instalment of wages.

(3)Nothing in section 20 or 21 applies to a payment falling within section 20(1) which is made on or after the day on which any such worker’s final instalment of wages is paid; but (even if the requirements of section 15 would otherwise be satisfied with respect to it) his employer shall not be treated as receiving any such payment in accordance with that section if the payment was first required to be made after the end of the period referred to in section 20(3)(b).

(4)Section 21(3) does not apply to an amount which is to be paid by a worker on or after the day on which his final instalment of wages is paid.

EnforcementE+W+S

23 Complaints to [F9employment tribunals].E+W+S

(1)A worker may present a complaint to an [F9employment tribunal]

(a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)),

(b)that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)),

(c)that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

(d)that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).

(2)Subject to subsection (4), an [F9employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—

(a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3)Where a complaint is brought under this section in respect of—

(a)a series of deductions or payments, or

(b)a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates,

the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

(4)Where the [F9employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

[F10(5)No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the M3Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given).]

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Amendments (Textual)

F9Words in s. 23(1)(2)(4) and sidenote to s. 23 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C13S. 23(1)(a) extended (1.4.1999) by 1998 c. 39, s. 20(1)(a)(with s. 36); S.I. 1998/2574, art. 2(2), Sch. 2

Marginal Citations

24 Determination of complaints.E+W+S

F11(1)Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer—

(a)in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13,

(b)in the case of a complaint under section 23(1)(b), to repay to the worker the amount of any payment received in contravention of section 15,

(c)in the case of a complaint under section 23(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and

(d)in the case of a complaint under section 23(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision.

[F12(2)Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.F12]

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Amendments (Textual)

25 Determinations: supplementary.E+W+S

(1)Where, in the case of any complaint under section 23(1)(a), a tribunal finds that, although neither of the conditions set out in section 13(1)(a) and (b) was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction shall for the purposes of section 24(a) be treated as reduced by the amount with respect to which that condition was satisfied.

(2)Where, in the case of any complaint under section 23(1)(b), a tribunal finds that, although neither of the conditions set out in section 15(1)(a) and (b) was satisfied with respect to the whole amount of the payment, one of those conditions was satisfied with respect to any lesser amount, the amount of the payment shall for the purposes of section 24(b) be treated as reduced by the amount with respect to which that condition was satisfied.

(3)An employer shall not under section 24 be ordered by a tribunal to pay or repay to a worker any amount in respect of a deduction or payment, or in respect of any combination of deductions or payments, in so far as it appears to the tribunal that he has already paid or repaid any such amount to the worker.

(4)Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of a particular deduction or payment falling within section 23(1)(a) to (d), the amount which the employer is entitled to recover (by whatever means) in respect of the matter in relation to which the deduction or payment was originally made or received shall be treated as reduced by that amount.

(5)Where a tribunal has under section 24 ordered an employer to pay or repay to a worker any amount in respect of any combination of deductions or payments falling within section 23(1)(c) or (d), the aggregate amount which the employer is entitled to recover (by whatever means) in respect of the cash shortages or stock deficiencies in relation to which the deductions or payments were originally made or required to be made shall be treated as reduced by that amount.

26 Complaints and other remedies.E+W+S

Section 23 does not affect the jurisdiction of an [F13employment tribunal] to consider a reference under section 11 in relation to any deduction from the wages of a worker; but the aggregate of any amounts ordered by an [F13employment tribunal] to be paid under section 12(4) and under section 24 (whether on the same or different occasions) in respect of a particular deduction shall not exceed the amount of the deduction.

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Amendments (Textual)

F13Words in s. 26 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

SupplementaryE+W+S

27 Meaning of “wages” etc.E+W+S

(1)In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—

(a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,

(b)statutory sick pay under Part XI of the M4Social Security Contributions and Benefits Act 1992,

(c)statutory maternity pay under Part XII of that Act,

[F14(ca)[F15ordinary statutory paternity pay or additional statutory paternity pay]F15 under Part 12ZA of that Act,

(cb)statutory adoption pay under Part 12ZB of that Act,]

F14(d)a guarantee payment (under section 28 of this Act),

(e)any payment for time off under Part VI of this Act or section 169 of the M5Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc.),

(f)remuneration on suspension on medical grounds under section 64 of this Act and remuneration on suspension on maternity grounds under section 68 of this Act,

[F16(fa)remuneration on ending the supply of an agency worker on maternity grounds under section 68C of this Act.]

F16(g)any sum payable in pursuance of an order for reinstatement or re-engagement under section 113 of this Act,

(h)any sum payable in pursuance of an order for the continuation of a contract of employment under section 130 of this Act or section 164 of the Trade Union and Labour Relations (Consolidation) Act 1992, and

(j)remuneration under a protective award under section 189 of that Act,

but excluding any payments within subsection (2).

(2)Those payments are—

(a)any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker’s wages in respect of any such advance),

(b)any payment in respect of expenses incurred by the worker in carrying out his employment,

(c)any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office,

(d)any payment referable to the worker’s redundancy, and

(e)any payment to the worker otherwise than in his capacity as a worker.

(3)Where any payment in the nature of a non-contractual bonus is (for any reason) made to a worker by his employer, the amount of the payment shall for the purposes of this Part—

(a)be treated as wages of the worker, and

(b)be treated as payable to him as such on the day on which the payment is made.

(4)In this Part “gross amount”, in relation to any wages payable to a worker, means the total amount of those wages before deductions of whatever nature.

(5)For the purposes of this Part any monetary value attaching to any payment or benefit in kind furnished to a worker by his employer shall not be treated as wages of the worker except in the case of any voucher, stamp or similar document which is—

(a)of a fixed value expressed in monetary terms, and

(b)capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

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Amendments (Textual)

Marginal Citations

Part IIIE+W+S Guarantee payments

28 Right to guarantee payment.E+W+S

(1)Where throughout a day during any part of which an employee would normally be required to work in accordance with his contract of employment the employee 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,

the employee is entitled to be paid by his employer an amount in respect of that day.

(2)In this Act a payment to which an employee is entitled under subsection (1) is referred to as a guarantee payment.

(3)In this Part—

(a)a day falling within subsection (1) is referred to as a “workless day”, and

(b)“workless period” has a corresponding meaning.

(4)In this Part “day” means the period of twenty-four hours from midnight to midnight.

(5)Where a period of employment begun on any day extends, or would normally extend, over midnight into the following day—

(a)if the employment before midnight is, or would normally be, of longer duration than that after midnight, the period of employment shall be treated as falling wholly on the first day, and

(b)in any other case, the period of employment shall be treated as falling wholly on the second day.

29 Exclusions from right to guarantee payment.E+W+S

(1)An employee is not entitled to a guarantee payment unless he has been continuously employed for a period of not less than one month ending with the day before that in respect of which the guarantee payment is claimed.

(2)F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An employee is not entitled to a guarantee payment in respect of a workless day if the failure to provide him with work for that day occurs in consequence of a strike, lock-out or other industrial action involving any employee of his employer or of an associated employer.

(4)An employee is not entitled to a guarantee payment in respect of a workless day if—

(a)his employer has offered to provide alternative work for that day which is suitable in all the circumstances (whether or not it is work which the employee is under his contract employed to perform), and

(b)the employee has unreasonably refused that offer.

(5)An employee is not entitled to a guarantee payment if he does not comply with reasonable requirements imposed by his employer with a view to ensuring that his services are available.

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Amendments (Textual)

F17S. 29(2) omitted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(2) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

30 Calculation of guarantee payment.E+W+S

(1)Subject to section 31, the amount of a guarantee payment payable to an employee in respect of any day is the sum produced by multiplying the number of normal working hours on the day by the guaranteed hourly rate; and, accordingly, no guarantee payment is payable to an employee in whose case there are no normal working hours on the day in question.

(2)The guaranteed hourly rate, in relation to an employee, is the amount of one week’s pay divided by 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.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working 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

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4)The considerations referred to in subsection (3)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5)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, subsections (2) and (3) have effect as if for the references to the day in respect of which the guarantee payment is payable there were substituted references to the last day on which the original contract was in force.

31 Limits on amount of and entitlement to guarantee payment.E+W+S

(1)The amount of a guarantee payment payable to an employee in respect of any day shall not exceed [F18£22.20]F18.

(2)An employee is not entitled to guarantee payments in respect of more than the specified number of days in any period of three months.

(3)The specified number of days for the purposes of subsection (2) is 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.

(4)But where that number of days varies from week to week or over a longer period, the specified number of days is instead—

(a)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

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), 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 considerations specified in subsection (5) as are appropriate in the circumstances.

(5)The considerations referred to in subsection (4)(b) are—

(a)the average number of normal working days in a week which the employee could expect in accordance with the terms of his contract, and

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

(6)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, subsections (3) and (4) 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.

[F19(7)The Secretary of State may by order vary—

(a)the length of the period specified in subsection (2);

(b)a limit specified in subsection (3) or (4).]

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Amendments (Textual)

Modifications etc. (not altering text)

C14S. 31(1): power to amend conferred (17.12.1999) by 1999 c. 26, s. 34(1)(a); S.I. 1999/3374, art. 2(a) (with art. 3)

32 Contractual remuneration.E+W+S

(1)A right to a guarantee payment does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(2)Any contractual remuneration paid to an employee in respect of a workless day goes 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 goes 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.

33 Power to modify provisions about guarantee payments.E+W+S

The Secretary of State may by order provide that in relation to any description of employees the provisions of—

(a)sections 28(4) and (5), 30, 31(3) to (5) (as originally enacted or as varied under section 31(7)) and 32, and

(b)so far as they apply for the purposes of those provisions, Chapter II of Part XIV and section 234,

shall have effect subject to such modifications and adaptations as may be prescribed by the order.

34 Complaints to [F20employment tribunals].E+W+S

(1)An employee may present a complaint to an [F20employment 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 [F20employment tribunal] shall not consider a complaint relating to a guarantee payment in respect of any day unless the complaint is presented to the tribunal—

(a)before the end of the period of three months beginning with that day, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F20employment tribunal] finds a complaint under this section well-founded, the tribunal shall order the employer to pay to the employee the amount of guarantee payment which it finds is due to him.

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Amendments (Textual)

F20Words in s. 34(1)(2)(3) and sidenote to s. 34 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

35 Exemption orders.E+W+S

(1)Where—

(a)at any time there is in force a collective agreement, or an agricultural wages order, under which employees to whom the agreement or order relates have a right to guaranteed remuneration, and

(b)on the application of all the parties to the agreement, or of the Board making the order, the appropriate Minister (having regard to the provisions of the agreement or order) is satisfied that section 28 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) “agricultural wages order” means an order made under—

(a)section 3 of the M6Agricultural Wages Act 1948, or

(b)section 3 of the M7Agricultural Wages (Scotland) Act 1949.

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

(a)in relation to a collective agreement or to an order such as is referred to in subsection (2)(b), the Secretary of State, and

(b)in relation to an order such as is referred to in subsection (2)(a), the [F21Secretary of State]F21 .

(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 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 [F22employment 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.

(5)Where an order under this section is in force in respect of an agreement indicating as described in paragraph (b) of subsection (4) an [F22employment tribunal] shall have jurisdiction over a complaint such as is mentioned in that paragraph as if it were a complaint falling within section 34.

(6)An order varying or revoking an earlier order under this section may be made in pursuance of an application by all or any of the parties to the agreement in question, or the Board which made the order in question, or in the absence of such an application.

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Amendments (Textual)

F22Words in s. 35(5) 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

Marginal Citations

Part IVE+W+S Sunday working for shop and betting workers

Protected shop workers and betting workersE+W+S

36 Protected shop workers and betting workers.E+W+S

(1)Subject to subsection (5), a shop worker or betting worker is to be regarded as “protected” for the purposes of any provision of this Act if (and only if) subsection (2) or (3) applies to him.

(2)This subsection applies to a shop worker or betting worker if—

(a)on the day before the relevant commencement date he was employed as a shop worker or a betting worker but not to work only on Sunday,

(b)he has been continuously employed during the period beginning with that day and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c)throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(3)This subsection applies to any shop worker or betting worker whose contract of employment is such that under it he—

(a)is not, and may not be, required to work on Sunday, and

(b)could not be so required even if the provisions of this Part were disregarded.

(4)Where on the day before the relevant commencement date an employee’s relations with his employer had ceased to be governed by a contract of employment, he shall be regarded as satisfying subsection (2)(a) if—

(a)that day fell in a week which counts as a period of employment with that employer under section 212(2) or (3) or under regulations under section 219, and

(b)on the last day before the relevant commencement date on which his relations with his employer were governed by a contract of employment, the employee was employed as a shop worker or a betting worker but not to work only on Sunday.

(5)A shop worker is not a protected shop worker, and a betting worker is not a protected betting worker, if—

(a)he has given his employer an opting-in notice on or after the relevant commencement date, and

(b)after giving the notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

(6)In this Act “opting-in notice”, in relation to a shop worker or a betting worker, means written notice, signed and dated by the shop worker or betting worker, in which the shop worker or betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working.

(7)[F23Subject to subsection (8),]F23 in this Act “the relevant commencement date” means—

(a)in relation to a shop worker, 26th August 1994, and

(b)in relation to a betting worker, 3rd January 1995.

[F24(8)In any provision of this Act which applies to Scotland by virtue of section 1(5) of the Sunday Working (Scotland) Act 2003 (extension to Scotland of provisions which refer to shop workers and betting workers), “the relevant commencement date” means, in relation to Scotland, the date on which that section came into force.F24]

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Extent Information

E2S. 36, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Amendments (Textual)

37 Contractual requirements relating to Sunday work.E+W+S

(1)Any contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday on or after that date, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday on or after that date.

(2)Subject to subsection (3), any agreement entered into after the relevant commencement date between a protected shop worker, or a protected betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday.

(3)Where, after giving an opting-in notice, a protected shop worker or a protected betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be protected), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F25(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 36(2)(b), the appropriate date—

(a)in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, F26. . .

F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Extent Information

E3S. 37, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Amendments (Textual)

F26Word “and” after s. 37(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 6(b), Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

38 Contracts with guaranteed hours.E+W

(1)This section applies where—

(a)under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the employer is, or may be, required to provide him with shop work, or betting work, for a specified number of hours each week,

(b)under the contract the shop worker or betting worker was, or might have been, required to work on Sunday before that date, and

(c)the shop worker has done shop work, or the betting worker betting work, on Sunday in that employment (whether or not before that day) but has, on or after that date, ceased to do so.

(2)So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall not be regarded as requiring the employer to provide him with shop work, or betting work, on weekdays in excess of the hours normally worked by the shop worker or betting worker on weekdays before he ceased to do shop work, or betting work, on Sunday.

(3)For the purposes of section 36(2)(b), the appropriate date in relation to this section is any time in relation to which the contract is to be enforced.

39 Reduction of pay etc.E+W

(1)This section applies where—

(a)under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the shop worker or betting worker was, or might have been, required to work on Sunday before the relevant commencement date,

(b)the shop worker has done shop work, or the betting worker has done betting work, on Sunday in that employment (whether or not before that date) but has, on or after that date, ceased to do so, and

(c)it is not apparent from the contract what part of the remuneration payable, or of any other benefit accruing, to the shop worker or betting worker was intended to be attributable to shop work, or betting work, on Sunday.

(2)So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall be regarded as enabling the employer to reduce the amount of remuneration paid, or the extent of the other benefit provided, to the shop worker or betting worker in respect of any period by the relevant proportion.

(3)In subsection (2) “the relevant proportion” means the proportion which the hours of shop work, or betting work, which (apart from this Part) the shop worker, or betting worker, could have been required to do on Sunday in the period (“the contractual Sunday hours”) bears to the aggregate of those hours and the hours of work actually done by the shop worker, or betting worker, in the period.

(4)Where, under the contract of employment, the hours of work actually done on weekdays in any period would be taken into account in determining the contractual Sunday hours, they shall be taken into account in determining the contractual Sunday hours for the purposes of subsection (3).

(5)For the purposes of section 36(2)(b), the appropriate date in relation to this section is the end of the period in respect of which the remuneration is paid or the benefit accrues.

Opting-out of Sunday workE+W+S

40 Notice of objection to Sunday working.E+W+S

(1)A shop worker or betting worker to whom this section applies may at any time give his employer written notice, signed and dated by the shop worker or betting worker, to the effect that he objects to Sunday working.

(2)In this Act “opting-out notice” means a notice given under subsection (1) by a shop worker or betting worker to whom this section applies.

(3)This section applies to any shop worker or betting worker who under his contract of employment—

(a)is or may be required to work on Sunday (whether or not as a result of previously giving an opting-in notice), but

(b)is not employed to work only on Sunday.

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Extent Information

E4S. 40, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

41 Opted-out shop workers and betting workers.E+W+S

(1)Subject to subsection (2), a shop worker or betting worker is to be regarded as “opted-out” for the purposes of any provision of this Act if (and only if)—

(a)he has given his employer an opting-out notice,

(b)he has been continuously employed during the period beginning with the day on which the notice was given and ending with the day which, in relation to the provision concerned, is the appropriate date, and

(c)throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker.

(2)A shop worker is not an opted-out shop worker, and a betting worker is not an opted-out betting worker, if—

(a)after giving the opting-out notice concerned, he has given his employer an opting-in notice, and

(b)after giving the opting-in notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday.

(3)In this Act “notice period”, in relation to an opted-out shop worker or an opted-out betting worker, means, subject to section 42(2), the period of three months beginning with the day on which the opting-out notice concerned was given.

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Extent Information

E5S. 41, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

42 Explanatory statement.E+W+S

(1)Where a person becomes a shop worker or betting worker to whom section 40 applies, his employer shall, before the end of the period of two months beginning with the day on which that person becomes such a worker, give him a written statement in the prescribed form.

(2)If—

(a)an employer fails to comply with subsection (1) in relation to any shop worker or betting worker, and

(b)the shop worker or betting worker, on giving the employer an opting-out notice, becomes an opted-out shop worker or an opted-out betting worker,

section 41(3) has effect in relation to the shop worker or betting worker with the substitution for “three months” of “one month”.

(3)An employer shall not be regarded as failing to comply with subsection (1) in any case where, before the end of the period referred to in that subsection, the shop worker or betting worker has given him an opting-out notice.

(4)Subject to subsection (6), the prescribed form in the case of a shop worker is as follows—

Statutory Rights in Relation to Sunday Shop WorkE+W+S

You have become employed as a shop worker and are or can be required under your contract of employment to do the Sunday work your contract provides for.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to work in or about a shop on any Sunday on which the shop is open once three months have passed from the date on which you gave the notice.

Your notice must—

be in writing;

be signed and dated by you;

say that you object to Sunday working.

For three months after you give the notice, your employer can still require you to do all the Sunday work your contract provides for. After the three month period has ended, you have the right to complain to an [F27employment tribunal] if, because of your refusal to work on Sundays on which the shop is open, your employer—

dismisses you, or

does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to work on Sunday or that you do not object to Sunday working and then agreeing with your employer to work on Sundays or on a particular Sunday.

(5)Subject to subsection (6), the prescribed form in the case of a betting worker is as follows—

Statutory Rights in Relation to Sunday Betting WorkE+W+S

You have become employed under a contract of employment under which you are or can be required to do Sunday betting work, that is to say, work—

at a track on a Sunday on which your employer is taking bets at the track, or

in a licensed betting office on a Sunday on which it is open for business.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday betting work once three months have passed from the date on which you gave the notice.

Your notice must—

be in writing;

be signed and dated by you;

say that you object to doing Sunday betting work.

For three months after you give the notice, your employer can still require you to do all the Sunday betting work your contract provides for. After the three month period has ended, you have the right to complain to an [F27employment tribunal] if, because of your refusal to do Sunday betting work, your employer—

dismisses you, or

does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday betting work or that you do not object to doing Sunday betting work and then agreeing with your employer to do such work on Sundays or on a particular Sunday.

(6)The Secretary of State may by order amend the prescribed forms set out in subsections (4) and (5).

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Extent Information

E6S. 42, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Amendments (Textual)

F27Words in s. 42(4)(5) 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

43 Contractual requirements relating to Sunday work.E+W+S

(1)Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(2)Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(3)Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F28(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 41(1)(b), the appropriate date—

(a)in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, F29. . .

F28(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Extent Information

E7S. 43, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Amendments (Textual)

F29Word “and” after s. 43(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(b), Sch. 9(2); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

43 Contractual requirements relating to Sunday work.E+W

(1)Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(2)Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(3)Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F28(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 41(1)(b), the appropriate date—

(a)in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, F29. . .

F28(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F29Word “and” after s. 43(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(b), Sch. 9(2); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

[F30Part IVAE+W+S Protected disclosures

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Amendments (Textual)

F30Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3143A Meaning of “protected disclosure”.E+W+S

In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

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Amendments (Textual)

F31Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3243B Disclosures qualifying for protection.E+W+S

(1)In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4)A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5)In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

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Amendments (Textual)

F32Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3343C Disclosure to employer or other responsible person.E+W+S

(1)A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—

(a)to his employer, or

(b)where the worker reasonably believes that the relevant failure relates solely or mainly to—

(i)the conduct of a person other than his employer, or

(ii)any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2)A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

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Amendments (Textual)

F33Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3443D Disclosure to legal adviser.E+W+S

A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.

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Amendments (Textual)

F34Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3543E Disclosure to Minister of the Crown.E+W+S

A qualifying disclosure is made in accordance with this section if—

(a)the worker’s employer is—

(i)an individual appointed under any enactment [F36(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)] by a Minister of the Crown [F36or a member of the Scottish Executive], or

(ii)a body any of whose members are so appointed, and

(b)the disclosure is made in good faith to a Minister of the Crown [F36or a member of the Scottish Executive].

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Amendments (Textual)

F35Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F36Words in s. 43E inserted (27.7.2000) by S.I. 2000/2040, art. 2, Sch. Pt. I para. 19(2)(3) (with art. 3)

F3743F Disclosure to prescribed person.E+W+S

(1)A qualifying disclosure is made in accordance with this section if the worker—

(a)makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b)reasonably believes—

(i)that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii)that the information disclosed, and any allegation contained in it, are substantially true.

(2)An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.

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Amendments (Textual)

F37Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3843G Disclosure in other cases.E+W+S

(1)A qualifying disclosure is made in accordance with this section if—

(a)the worker makes the disclosure in good faith,

(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)any of the conditions in subsection (2) is met, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)The conditions referred to in subsection (1)(d) are—

(a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c)that the worker has previously made a disclosure of substantially the same information—

(i)to his employer, or

(ii)in accordance with section 43F.

(3)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

(a)the identity of the person to whom the disclosure is made,

(b)the seriousness of the relevant failure,

(c)whether the relevant failure is continuing or is likely to occur in the future,

(d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e)in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f)in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4)For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

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Amendments (Textual)

F38Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F3943H Disclosure of exceptionally serious failure.E+W+S

(1)A qualifying disclosure is made in accordance with this section if—

(a)the worker makes the disclosure in good faith,

(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)the relevant failure is of an exceptionally serious nature, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

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Amendments (Textual)

F39Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F4043J Contractual duties of confidentiality.E+W+S

(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

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Amendments (Textual)

F40Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F4143K Extension of meaning of “worker” etc. for Part IVA.E+W+S

(1)For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who—

(a)works or worked for a person in circumstances in which—

(i)he is or was introduced or supplied to do that work by a third person, and

(ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,

[F42(ba)works or worked as a person performing services under a contract entered into by him with a Primary Care Trust [F43under section 84 or 100 of the National Health Service Act 2006 or with a Local Health Board under section 42 or 57 of the National Health Service (Wales) Act 2006]F43 ,]

[F44F42(bb)works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J of the National Health Service (Scotland) Act 1978,]

F44(c)works or worked as a person providing F45... general dental services, general ophthalmic services or pharmaceutical services in accordance with arrangements made—

(i)by a [F46Primary Care Trust [F47under section 126 of the National Health Service Act 2006,]F47 orF46][F48Local Health Board]F48 under [F49section 71 or 80 of the National Health Service (Wales) Act 2006]F49 , or

(ii)by a Health Board under section F50... 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

(d)is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i)under a contract of employment, or

(ii)by an educational establishment on a course run by that establishment;

and any reference to a worker’s contract, to employment or to a worker being “employed” shall be construed accordingly.

(2)For the purposes of this Part “employer” includes—

(a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

[F51(aa)in relation to a worker falling within paragraph (ba) of that subsection, the Primary Care Trust or Local Health Board referred to in that paragraph,]

[F52F51(ab)in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,]

F52(b)in relation to a worker falling within paragraph (c) of that subsection, the authority or board referred to in that paragraph, and

(c)in relation to a worker falling within paragraph (d) of that subsection, the person providing the work experience or training.

(3)In this section “educational establishment” includes any university, college, school or other educational establishment.

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Amendments (Textual)

F41Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

F48Words in s. 43K(1)(c)(i) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. {para. 27(2)}

Modifications etc. (not altering text)

43KA Application of this Part and related provisions to policeE+W+S

(1)For the purposes of—

(a)this Part,

(b)section 47B and sections 48 and 49 so far as relating to that section, and

(c)section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A,

a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “employed” and to his “employer” shall be construed accordingly.

(2)In this section “the relevant officer” means—

(a)in relation to a member of a police force or a special constable appointed for a police area, the chief officer of police;

[F54(b)in relation to a member of a police force seconded to the Serious Organised Crime Agency to serve as a member of its staff, that Agency; and]

F54(d)in relation to any other person holding the office of constable or an appointment as police cadet, the person who has the direction and control of the body of constables or cadets in question.]

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Amendments (Textual)

F5543L Other interpretative provisions.E+W+S

(1)In this Part—

  • qualifying disclosure” has the meaning given by section 43B;

  • the relevant failure”, in relation to a qualifying disclosure, has the meaning given by section 43B(5).

(2)In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any enactment.

(3)Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.]

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Amendments (Textual)

F55Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2

Part VE+W+S Protection from suffering detriment in employment

Rights not to suffer detrimentE+W+S

[F5643MJury serviceE+W+S

(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 on the ground that the employee—

(a)has been summoned under the Juries Act 1974, the Coroners Act 1988, the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or

(b)has been absent from work because he attended at any place in pursuance of being so summoned.

(2)This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.

(3)For the purposes of this section, an employee is not to be regarded as having been subjected to a detriment by a failure to pay remuneration in respect of a relevant period unless under his contract of employment he is entitled to be paid that remuneration.

(4)In subsection (3) “a relevant period” means any period during which the employee is absent from work because of his attendance at any place in pursuance of being summoned as mentioned in subsection (1)(a).]

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Amendments (Textual)

44 Health and safety cases.E+W+S

(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, the employee 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 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,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

[F57(ba)the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),]

(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 the employee 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 the employee 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 is to 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 is not to 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)F58. . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F59Part X]).

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Amendments (Textual)

F57S. 44(1)(ba) inserted (1.10.1996) by S.I. 1996/1513, reg. 8

45 Sunday working for shop and betting workers.E+W+S

(1)An employee who is—

(a)a protected shop worker or an opted-out shop worker, or

(b)a protected betting worker or an opted-out betting worker,

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 the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2)Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3)An employee who is a shop worker or a betting worker 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 the employee gave (or proposed to give) an opting-out notice to his employer.

(4)Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).

(5)For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—

(a)a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,

(b)a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or

(c)a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.

(6)Where an employer offers to pay a sum specified in the offer to any one or more employees—

(a)who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or

(b)who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,

if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.

(7)An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.

(8)An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.

(9)For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.

(10)For the purposes of subsection (9)—

(a)where an act extends over a period, the “date of the act” means the first 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.

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Extent Information

E8S. 45, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

45 Sunday working for shop and betting workers.E+W

(1)An employee who is—

(a)a protected shop worker or an opted-out shop worker, or

(b)a protected betting worker or an opted-out betting worker,

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 the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2)Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3)An employee who is a shop worker or a betting worker 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 the employee gave (or proposed to give) an opting-out notice to his employer.

(4)Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).

(5)For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—

(a)a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,

(b)a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or

(c)a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.

(6)Where an employer offers to pay a sum specified in the offer to any one or more employees—

(a)who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or

(b)who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,

if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.

(7)An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.

(8)An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.

(9)For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.

(10)For the purposes of subsection (9)—

(a)where an act extends over a period, the “date of the act” means the first 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.

[F6045A Working time cases.E+W+S

(1)A worker 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 the worker—

(a)refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M8Working Time Regulations 1998,

(b)refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

(c)failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations,

(d)being—

(i)a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

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

performed (or proposed to perform) any functions or activities as such a representative or candidate,

(e)brought proceedings against the employer to enforce a right conferred on him by those Regulations, or

(f)alleged that the employer had infringed such a right.

(2)It is immaterial for the purposes of subsection (1)(e) or (f)—

(a)whether or not the worker has the right, or

(b)whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith.

(3)It is sufficient for subsection (1)(f) to apply that the worker, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4)This section does not apply where a worker is an employee and the detriment in question amounts to dismissal within the meaning of Part X F61. . ..

[F62(5)A reference in this section to the Working Time Regulations 1998 includes a reference to

[F63(a)]F63the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F64(b)the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F65F64(c)the Cross-border Railway Services (Working Time) Regulations 2008F65F62]]]

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Amendments (Textual)

F60S. 45A inserted (1.10.1998) by S.I. 1998/1833, reg. 31(1)

Marginal Citations

46 Trustees of occupational pension schemes.E+W+S

(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 trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

(2)F66. . .this section does not apply where the detriment in question amounts to dismissal (within the meaning of [F67Part X]).

[F68(2A)This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).]

(3)In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the M9Pension Schemes Act 1993) established under a trust.

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Amendments (Textual)

F68S. 46(2A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, s. 18, Sch. 2 para. 19(2); S.I. 2000/1047, art. 2(2), Sch. Pt. II

Modifications etc. (not altering text)

C18S. 46 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(1), 89(1)(5)(a) (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I4S. 46 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

47 Employee representatives.E+W+S

(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 M10purposes of Chapter II of Part IV of the M11Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F69regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006]F69 , 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.

[F70(1A)An employee has the right not to be subjected to any detriment by any act, or by any deliberate failure to act, by his employer done on the ground of his participation in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F71regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006]F71 .]

(2)F72. . . This section does not apply where the detriment in question amounts to a dismissal (within the meaning of [F73Part X]).

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Amendments (Textual)

F69Words in s. 47(1)(a) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F70S. 47(1A) inserted (28.7.1999) by S.I. 1999/1925, reg. 12

F71Words in s. 47(1A) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(a)

F73Words in s. 47(2) substituted (25.10.1999) by 1999 c. 26, s. 18(2)(b); S.I. 1999/2830, art. 2(1), Sch. 1 Pt. I (with Sch. 3 para. 2)

Marginal Citations

[F7447A Employees exercising right to time off work for study or training.E+W+S

(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 or the principal (within the meaning of section 63A(3)) done on the ground that, being a person entitled to—

(a)time off under section 63A(1) or (3), and

(b)remuneration under section 63B(1) in respect of that time taken off,

the employee exercised (or proposed to exercise) that right or received (or sought to receive) such remuneration.

(2)F75. . . This section does not apply where the detriment in question amounts to dismissal (within the meaning of [F76Part X]).]

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Amendments (Textual)

Prospective

[F7747AAEmployees in England aged 16 or 17 participating in education or trainingE+W+S

(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 person entitled to be permitted to participate in education or training by section 27 or 28 of the Education and Skills Act 2008, the employee exercised, or proposed to exercise, that right.

(2)This section does not apply where the detriment in question amounts to dismissal (within the meaning of Part 10).]

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Amendments (Textual)

[F7847B Protected disclosures.E+W+S

(1)A worker 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 the worker has made a protected disclosure.

(2)F79. . . This section does not apply where—

(a)the worker is an employee, and

(b)the detriment in question amounts to dismissal (within the meaning of [F80Part X]).

(3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K.]

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Amendments (Textual)

F78S. 47B inserted (2.7.1999) by 1998 c. 23, s. 2; S.I. 1999/1547, art. 2

[F8147C Leave for family and domestic reasons.E+W+S

(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 for a prescribed reason.

(2)A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to—

(a)pregnancy, childbirth or maternity,

(b)ordinary, compulsory or additional maternity leave,

[F82(ba)ordinary or additional adoption leave,]

F82(c)parental leave,

[F84(ca)ordinary or additional paternity leave, or]]

F84F83(d)time off under section 57A.

(3)A reason prescribed under this section in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement.

(4)Regulations under this section may make different provision for different cases or circumstances.]

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Amendments (Textual)

[F8547D Tax creditsE+W+S

(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)any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right conferred on the employee by regulations under section 25 of the Tax Credits Act 2002,

(b)a penalty was imposed on the employer, or proceedings for a penalty were brought against him, under that Act, as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, such a right, or

(c)the employee is entitled, or will or may be entitled, to working tax credit.

(2)It is immaterial for the purposes of subsection (1)(a) or (b)—

(a)whether or not the employee has the right, or

(b)whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and (if applicable) the claim that it has been infringed must be made in good faith.

(3)Subsections (1) and (2) apply to a person who is not an employee within the meaning of this Act but who is an employee within the meaning of section 25 of the Tax Credits Act 2002, with references to his employer in those subsections (and sections 48(2) and (4) and 49(1)) being construed in accordance with that section.

(4)Subsections (1) and (2) do not apply to an employee if the detriment in question amounts to dismissal (within the meaning of Part 10).]

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Amendments (Textual)

F85S. 47D inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(2); S.I. 2002/1727, art. 2

[F8647E Flexible workingE+W+S

(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 the employee—

(a)made (or proposed to make) an application under section 80F,

(b)exercised (or proposed to exercise) a right conferred on him under section 80G,

(c)brought proceedings against the employer under section 80H, or

(d)alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

(2)This section does not apply where the detriment in question amounts to dismissal within the meaning of Part 10.]

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Amendments (Textual)

[F8747FStudy and trainingE+W+S

(1)An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employee's employer done on the ground that the employee—

(a)made (or proposed to make) a section 63D application,

(b)exercised (or proposed to exercise) a right conferred on the employee under section 63F,

(c)brought proceedings against the employer under section 63I, or

(d)alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

(2)This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.]

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Amendments (Textual)

F87S. 47F inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40(3), 269(4); S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

EnforcementE+W+S

48 Complaints to [F88employment tribunals].E+W+S

(1)An employee may present a complaint to an [F88employment tribunal] that he has been subjected to a detriment in contravention of section [F8943M,]F89 44, 45, [F9046, 47 [F91, 47A [F92, 47C [F93, 47E or 47FF93]]]]F92.

[F94(1ZA)A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 45A.]

[F95(1A)A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.]

[F96(1B)A person may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47D.]

F96(2)On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3)An [F88employment 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)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 that period of three months.

(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.

[F97(5)In this section and section 49 any reference to the employer includes, where a person complains that he has been subjected to a detriment in contravention of section 47A, the principal (within the meaning of section 63A(3)).]

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Amendments (Textual)

F88Words in s. 48(1)(3) and sidenote to s. 48 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F90Words in s. 48(1) substituted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 11(a) (with s. 42(8)); S.I. 1999/987, art. 2

F93Words in s. 48(1) substituted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 2; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F94S. 48(1ZA) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(2)

F96S. 48(1B) inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(3); S.I. 2002/1727, art. 2

Modifications etc. (not altering text)

C19S. 48 applied (4.9.2000) by 1999 c. 26, s. 12(2) (with ss. 14, 15); S.I. 2000/2242, art. 2

C22S. 48(2)-(4) applied (with modifications) (1.11.1998) by 1998 c. 39, s. 24(2)(a); S.I. 1998/2574, art. 2(1), Sch. 1

S. 48(2)-(4) extended (with modifications) (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 2(2)(a)

S. 48(2)-(4) applied (with modifications) (15.1.2000) by S.I. 1999/3323, reg. 32(2)(a)

C23S. 48(2)-(4) applied (with modifications) (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 45(2)

C27S. 48(2)-(4) applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6))

C28S. 48(2)-(4) applied (with modifications) (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 32(2) (with reg. 41)

49 Remedies.E+W+S

(1)Where an [F98employment tribunal] finds a complaint under section 48 well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

(2)[F99Subject to [F100subsections (5A) and (6)]] the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement to which the complaint relates, and

(b)any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3)The loss shall be taken to include—

(a)any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and

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

(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 (as the case may be) Scotland.

(5)Where the tribunal finds that the act, or failure to act, to which the complaint relates 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.

[F101(5A)Where—

(a)the complaint is made under section 48 (1ZA),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A.]

[F102(6)Where—

(a)the complaint is made under section 48(1A),

(b)the detriment to which the worker is subjected is the termination of his worker’s contract, and

(c)that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A.]

[F103(7)Where—

(a)the complaint is made under section 48(1B) by a person who is not an employee, and

(b)the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002,

any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the complainant had been an employee and had been dismissed for the reason specified in section 104B.F103]

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Amendments (Textual)

F98Words in s. 49(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

F99Words in s. 49(2) inserted (2.7.1999) by 1998 c. 23, s. 4(2); S.I. 1999/1547, art. 2

F100Words in s. 49(2) substituted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(a)

F101S. 49(5A) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(3)(b)

F103S. 49(7) inserted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(4); S.I. 2002/1727, art. 2

Modifications etc. (not altering text)

C29S. 49 applied (with modifications) (1.11.1998) by 1998 c. 39, s. 24(2)(a)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1

S. 49 restricted (1.11.1998) by 1998 c. 39, s. 14(3)(with s. 36); S.I. 1998/2574, art. 2(1), Sch. 1

S. 49 applied (with modifications) (15.1.2000) by S.I. 1999/3323, reg. 32(2)(a)

S. 49 extended (with modifications) (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 2(2)(a)

C30S. 49 applied (with modifications) (prosp.) by Pensions Act 2008 (c. 30), ss. 56(2), 149(1) (with s. 56(3)-(6))

C31S. 49(1)-(5) applied (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 45(3)

[F104 Application to police of rights relating to health and safetyE+W+S

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Amendments (Textual)

F104S. 49A and crossheading inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

F10549A Application to police of section 44 and related provisions.E+W+S

(1)For the purposes of section 44, and of sections 48 and 49 so far as relating to that section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as police cadet shall be treated as employment by the relevant officer under a contract of employment.

[F106(2)In this section “the relevant officer”, in relation to—

(a)a person holding the office of constable, or

(b)a person holding an appointment as a police cadet,

means the person who under section 51A of the Health and Safety at Work etc. Act 1974 is to be treated as his employer for the purposes of Part 1 of that Act.F106]]

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Amendments (Textual)

F105S. 49A inserted (1.7.1998) by 1997 c. 42, s. 3; S.I. 1998/1542, art. 2

Part VIE+W+S Time off work

Public dutiesE+W+S

50 Right to time off for public duties.E+W+S

(1)An employer shall permit an employee of his who is a justice of the peace to take time off during the employee’s working hours for the purpose of performing any of the duties of his office.

(2)An employer shall permit an employee of his who is a member of—

(a)a local authority,

(b)a statutory tribunal,

[F107(c)a police authority established under section 3 of the Police Act 1996 or the Metropolitan Police Authority,]

F107(ca)F108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)[F109an independent monitoring board for a prison]F109 or a prison visiting committee,

(e)a relevant health body,

(f)a relevant education body, F110. . .

(g)the Environment Agency or the Scottish Environment Protection Agency, [F111or]

[F112(h)Scottish Water or a Water Customer Consultation Panel,]

F112to take time off during the employee’s working hours for the purposes specified in subsection (3).

(3)The purposes referred to in subsection (2) are—

(a)attendance at a meeting of the body or any of its committees or sub-committees, and

(b)the doing of any other thing approved by the body, or anything of a class so approved, for the purpose of the discharge of the functions of the body or of any of its committees or sub-committees.[F113 and

(c)in the case of a local authority which are operating executive arrangements—

(i)attendance at a meeting of the executive of that local authority or committee of that executive; and

(ii)the doing of any other thing, by an individual member of that executive, for the purposes of the discharge of any function which is to any extent the responsibility of that executive.]

(4)The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and any conditions subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular, to—

(a)how much time off is required for the performance of the duties of the office or as a member of the body in question, and how much time off is required for the performance of the particular duty,

(b)how much time off the employee has already been permitted under this section or sections 168 and 170 of the M12Trade Union and Labour Relations (Consolidation) Act 1992 (time off for trade union duties and activities), and

(c)the circumstances of the employer’s business and the effect of the employee’s absence on the running of that business.

(5)In subsection (2)(a) “a local authority” means—

(a)a local authority within the meaning of the M13Local Government Act 1972,

(b)a council constituted under section 2 of the M14Local Government etc. (Scotland) Act 1994,

(c)the Common Council of the City of London,

(d)a National Park authority, or

(e)the Broads Authority.

(6)F114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In subsection (2)(d)—

(a)[F115independent monitoring board” means a board]F115 appointed under section 6(2) of the M15Prison Act 1952, and

(b)a prison visiting committee” means a visiting committee appointed under section 19(3) of the M16Prisons (Scotland) Act 1989 or constituted by virtue of rules made under section 39 (as read with section 8(1)) of that Act.

(8)In subsection (2)(e) “a relevant health body” means—

(a)a National Health Service trust established under [F116section 25 of the National Health Service Act 2006, section 18 of the National Health Service (Wales) Act 2006]F116 or the M17National Health Service (Scotland) Act 1978,

[F117(ab)an NHS foundation trust,]

F117(b)a [F118Strategic Health Authority established under section 13 of the National Health Service Act 2006, aF118][F119Local Health Board established under section 11 of the National Health Service (Wales) Act 2006F119]F120...[F121, a Special Health Authority established under [F122section 28 of the National Health Service Act 2006 or section 22 of the National Health Service (Wales) Act 2006]F122 or a Primary Care Trust established under [F123section 18 of the National Health Service Act 2006F123]], or

(c)a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978.

(9)In subsection (2)(f) “a relevant education body” means—

(a)a managing or governing body of an educational establishment maintained by a [F124local authority (as defined in section 579(1) of the Education Act 1996)]F124,

[F125(b)a further education corporation, sixth form college corporation or higher education corporation,]

F125(c)a school council appointed under section 125(1) of the M18Local Government (Scotland) Act 1973,

[F126(d)a parent council within the meaning of section 5(2) of the Scottish Schools (Parental Involvement) Act 2006 M19,]

[F127F126(e)a board of management of a self-governing school within the meaning of section 135(1) of the M20Education (Scotland) Act 1980,]

(f)a board of management of a college of further education within the meaning of section 36(1) of the M21Further and Higher Education (Scotland) Act 1992,

(g)a governing body of a central institution within the meaning of section 135(1) of the Education (Scotland) Act 1980, F128. . .

(h)a governing body of a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992.

[F129(i)the General Teaching Council for England, or

(j)the General Teaching Council for Wales.]

[F130(9A)In subsection (3)(c) of this section “executive” and “executive arrangements” have the same meaning as in Part II of the Local Government Act 2000.]

[F131(9B)In subsection (9)(b) “further education corporation”, “sixth form college corporation” and “higher education corporation” have the same meanings as in the Further and Higher Education Act 1992.]

F131(10)The Secretary of State may by order—

(a)modify the provisions of subsections (1) and (2) and (5) to (9) by adding any office or body, removing any office or body or altering the description of any office or body, or

(b)modify the provisions of subsection (3).

(11)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

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Amendments (Textual)

F110Word at end of s. 50(2)(f) omitted (14.8.2000) by virtue of S.I. 2000/1737, art. 2(a)

F111S. 50(2)(h) and the word "or" immediately preceding it added (14.8.2000) by S.I. 2000/1737, art. 2(b)(c)

F113S. 50(3)(c) and preceding word inserted (E.) (11.7.2001) and (W.) (1.4.2002) by S.I. 2001/2237, art. 30(a) and S.I. 2002/808, art. 29(a)

F119Words in s. 50(8)(b) substituted (1.4.2007) by virtue of The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 27(3)

F121Words in s. 50(8)(b) substituted (8.2.2000) by S.I. 2000/90, art. 3, Sch. 1 para. 30(2) (with s. 2(5)

F128Word in s. 50(9) after para. (g) omitted (5.10.2000) by virtue of S.I. 2000/2463, art. 2(2)

F129S. 50(9)(i)(j) inserted (5.10.2000) by S.I. 2000/2463, 2(3)

F130S. 50(9A) inserted (E.) (11.7.2001) and (W.) (1.4.2002) by S.I. 2001/2237, art. 30(b) and S.I. 2002/808, art. 29(b)

Modifications etc. (not altering text)

C37S. 50(3) applied (1.4.1998) by S.I. 1998/633, art. J12(2)

C38S. 50(4) excluded (1.4.1998) by S.I. 1998/633, art. J12(1)

Marginal Citations

51 Complaints to [F132employment tribunals].E+W+S

(1)An employee may present a complaint to an [F132employment tribunal] that his employer has failed to permit him to take time off as required by section 50.

(2)An [F132employment tribunal] shall not consider a complaint under this section that an employer has failed to permit an employee to take time off unless it is presented—

(a)before the end of the period of three months beginning with the date on which the failure occurred, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F132employment tribunal] finds a complaint under this section well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the employee.

(4)The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the employer’s default in failing to permit time off to be taken by the employee, and

(b)any loss sustained by the employee which is attributable to the matters to which the complaint relates.

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Amendments (Textual)

F132Words in s. 51(1)-(3) and sidenote to s. 51 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Looking for work and making arrangements for trainingE+W+S

52 Right to time off to look for work or arrange training.E+W+S

(1)An employee who is given notice of dismissal by reason of redundancy is entitled to be permitted by his employer to take reasonable time off during the employee’s working hours before the end of his notice in order to—

(a)look for new employment, or

(b)make arrangements for training for future employment.

(2)An employee is not entitled to take time off under this section unless, on whichever is the later of—

(a)the date on which the notice is due to expire, and

(b)the date on which it would expire were it the notice required to be given by section 86(1),

he will have been (or would have been) continuously employed for a period of two years or more.

(3)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

53 Right to remuneration for time off under section 52.E+W+S

(1)An employee who is permitted to take time off under section 52 is entitled to be paid remuneration by his employer for the period of absence at the appropriate hourly rate.

(2)The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the notice of dismissal was given.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by the average number of normal working 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 on which the notice was given.

(4)If an employer unreasonably refuses to permit an employee to take time off from work as required by section 52, the employee is entitled to be paid an amount equal to the remuneration to which he would have been entitled under subsection (1) if he had been permitted to take the time off.

(5)The amount of an employer’s liability to pay remuneration under subsection (1) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week’s pay of that employee.

(6)A right to any amount under subsection (1) or (4) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(7)Any contractual remuneration paid to an employee in respect of a period of time off under section 52 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

54 Complaints to [F133employment tribunals].E+W+S

(1)An employee may present a complaint to an [F133employment tribunal] that his employer—

(a)has unreasonably refused to permit him to take time off as required by section 52, or

(b)has failed to pay the whole or any part of any amount to which the employee is entitled under section 53(1) or (4).

(2)An [F133employment 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 on which it is alleged that the time off should have been permitted, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F133employment tribunal] finds a complaint under this section well-founded, the tribunal shall—

(a)make a declaration to that effect, and

(b)order the employer to pay to the employee the amount which it finds due to him.

(4)The amount which may be ordered by a tribunal to be paid by an employer under subsection (3) (or, where the employer is liable to pay remuneration under section 53, the aggregate of that amount and the amount of that liability) shall not exceed, in respect of the notice period of any employee, forty per cent. of a week’s pay of that employee.

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Amendments (Textual)

F133Words in s. 54(1)-(3) and sidenote to s. 54 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Ante-natal careE+W+S

55 Right to time off for ante-natal care.E+W+S

(1)An employee who—

(a)is pregnant, and

(b)has, on the advice of a registered medical practitioner, registered midwife or [F134registered nurse]F134 , made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted by her employer to take time off during the employee’s working hours in order to enable her to keep the appointment.

(2)An employee is not entitled to take time off under this section to keep an appointment unless, if her employer requests her to do so, she produces for his inspection—

(a)a certificate from a registered medical practitioner, registered midwife or [F134registered nurse]F134 stating that the employee is pregnant, and

(b)an appointment card or some other document showing that the appointment has been made.

(3)Subsection (2) does not apply where the employee’s appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).

(4)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with her contract of employment, the employee is required to be at work.

[F135(5)References in this section to a registered nurse are to such a nurse—

(a)who is also registered in the Specialist Community Public Health Nurses' Part of the register maintained under article 5 of the Nursing and Midwifery Order 2001, and

(b)whose entry in that Part of the register is annotated to show that he holds a qualification in health visiting.F135]

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Amendments (Textual)

F134Words in s. 55(1)(b)(2)(a) substituted by The Nursing and Midwifery Order 2001 (S.I. 2002/253), art. 54, Sch. 5 para. 13 (with art. 3(18)) (the amendment coming into force in accordance with art. 1(2)(3) of the amending S.I.)

56 Right to remuneration for time off under section 55.E+W+S

(1)An employee who is permitted to take time off under section 55 is entitled to be paid remuneration by her employer for the period of absence at the appropriate hourly rate.

(2)The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working 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 on which the time off is taken, or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4)The considerations referred to in subsection (3)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of her contract, and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5)A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under her contract of employment (“contractual remuneration”).

(6)Any contractual remuneration paid to an employee in respect of a period of time off under section 55 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

57 Complaints to [F136employment tribunals].E+W+S

(1)An employee may present a complaint to an [F136employment tribunal] that her employer—

(a)has unreasonably refused to permit her to take time off as required by section 55, or

(b)has failed to pay the whole or any part of any amount to which the employee is entitled under section 56.

(2)An [F136employment 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 appointment concerned, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F136employment tribunal] finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4)If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which she would have been entitled under section 56 if the employer had not refused.

(5)If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which she is entitled under section 56, the tribunal shall also order the employer to pay to the employee the amount which it finds due to her.

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Amendments (Textual)

F136Words in s. 57(1)-(3) and sidenote to s. 57 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

[F137Ante-natal care: agency workersE+W+S+N.I.

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Amendments (Textual)

57ZARight to time off for ante-natal care (agency workers)E+W+S

  (1) An agency worker who—

(a)is pregnant, and

(b)has, on the advice of a registered medical practitioner, registered midwife or registered nurse, made an appointment to attend at any place for the purpose of receiving ante-natal care,

is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order to enable her to keep the appointment.   (2) An agency worker is not entitled to be permitted by either of those persons to take time off under this section to keep an appointment unless, if that person requests her to do so, she produces for that person's inspection—

(a)a certificate from a registered medical practitioner, registered midwife or registered nurse stating that the agency worker is pregnant, and

(b)an appointment card or some other document showing that the appointment has been made.

  (3) Subsection (2) does not apply where the agency worker's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1).   (4) For the purposes of this section the working hours of an agency worker shall be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work.   (5) In this section references to a registered nurse have the same meaning as in section 55.

57ZBRight to remuneration for time off under section 57ZAE+W+S

  (1) An agency worker who is permitted to take time off under section 57ZA is entitled to be paid remuneration by the temporary work agency for the period of absence at the appropriate hourly rate.

  (2) The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off is taken.

  (3) But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken.

  (4) A right to any amount under subsection (1) does not affect any right of an agency worker in relation to remuneration under her contract with the temporary work agency (“contractual remuneration”).

  (5) Any contractual remuneration paid to an agency worker in respect of a period of time off under section 57ZA goes towards discharging any liability of the temporary work agency to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the temporary work agency to pay contractual remuneration in respect of that period.

57ZCComplaint to employment tribunal: agency workersE+W+S

  (1) An agency worker may present a complaint to an employment tribunal that the temporary work agency—

(a)has unreasonably refused to permit her to take time off as required by section 57ZA, or

(b)has failed to pay the whole or any part of any amount to which she is entitled under section 57ZB.

  (2) An agency worker may present a complaint to an employment tribunal that the hirer has unreasonably refused to permit her to take time off as required by section 57ZA.

  (3) An employment tribunal shall not consider a complaint under subsection (1) or (2) unless it is presented—

(a)before the end of the period of three months beginning with the date of the appointment concerned, or

(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 complaint to be presented before the end of that period of three months.

  (4) Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

  (5) If the complaint is that the temporary work agency or hirer has unreasonably refused to permit the agency worker to take time off, the tribunal shall also order payment to the agency worker of an amount equal to the remuneration to which she would have been entitled under section 57ZB if she had not been refused the time off.

  (6) Where the tribunal orders payment under subsection (5), the amount payable by each party shall be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates.

  (7) If the complaint is that the temporary work agency has failed to pay the agency worker the whole or part of any amount to which she is entitled under section 57ZB, the tribunal shall also order the temporary work agency to pay to the agency worker the amount which it finds due to her.

57ZDAgency workers: supplementaryE+W+S

  (1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law sections 57ZA to 57ZC do not apply where the agency worker—

(a)has not completed the qualifying period, or

(b)is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.

  (2) Nothing in those sections imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer.

  (3) Those sections do not apply where sections 55 to 57 apply.

  (4) In this section and sections 57ZA to 57ZC the following have the same meaning as in the Agency Workers Regulations 2010—

  • “agency worker”;

  • “assignment”;

  • “hirer”;

  • “qualifying period”;

  • “temporary work agency”.

[F138DependantsE+W+S

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Amendments (Textual)

F13957A Time off for dependants.E+W+S

(1)An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary—

(a)to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,

(b)to make arrangements for the provision of care for a dependant who is ill or injured,

(c)in consequence of the death of a dependant,

(d)because of the unexpected disruption or termination of arrangements for the care of a dependant, or

(e)to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

(2)Subsection (1) does not apply unless the employee—

(a)tells his employer the reason for his absence as soon as reasonably practicable, and

(b)except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

(3)Subject to subsections (4) and (5), for the purposes of this section “dependant” means, in relation to an employee—

(a)a spouse [F140or civil partner]F140 ,

(b)a child,

(c)a parent,

(d)a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.

(4)For the purposes of subsection (1)(a) or (b) “dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee—

(a)for assistance on an occasion when the person falls ill or is injured or assaulted, or

(b)to make arrangements for the provision of care in the event of illness or injury.

(5)For the purposes of subsection (1)(d) “dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care.

(6)A reference in this section to illness or injury includes a reference to mental illness or injury.

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Amendments (Textual)

F140Words in s. 57A(3)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 151; S.I. 2005/3175, art. 2(2) (Subject to art. 2(3)-(5))

F14157B Complaint to employment tribunal.E+W+S

(1)An employee may present a complaint to an employment tribunal that his employer has unreasonably refused to permit him to take time off as required by section 57A.

(2)An employment 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 when the refusal occurred, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an employment tribunal finds a complaint under subsection (1) well-founded, it—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the employee.

(4)The amount of compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the employer’s default in refusing to permit time off to be taken by the employee, and

(b)any loss sustained by the employee which is attributable to the matters complained of.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Occupational pension scheme trusteesE+W+S

58 Right to time off for pension scheme trustees.E+W+S

(1)The employer in relation to a relevant occupational pension scheme shall permit an employee of his who is a trustee of the scheme to take time off during the employee’s working hours for the purpose of—

(a)performing any of his duties as such a trustee, or

(b)undergoing training relevant to the performance of those duties.

(2)The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard, in particular, to—

(a)how much time off is required for the performance of the duties of a trustee of the scheme and the undergoing of relevant training, and how much time off is required for performing the particular duty or for undergoing the particular training, and

(b)the circumstances of the employer’s business and the effect of the employee’s absence on the running of that business.

[F142(2A)This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).]

(3)In this section—

(a)relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the M22Pension Schemes Act 1993) established under a trust, and

(b)references to the employer, in relation to such a scheme, are to an employer of persons in the description or category of employment to which the scheme relates [F143, and

F143(c)references to training are to training on the employer’s premises or elsewhere.]

(4)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F142S. 58(2A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, ss. 18, 89(1)(5)(a), Sch. 2 para. 19(3); S.I. 2000/1047, art. 2(2), Sch. Pt. II

F143S. 58(3)(c) and preceding word “and” inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 12 (with s. 42(8)); S.I. 1999/987, art. 2

Modifications etc. (not altering text)

C39S. 58 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(2), (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I5S. 58 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

59 Right to payment for time off under section 58.E+W+S

(1)An employer who permits an employee to take time off under section 58 shall pay him for the time taken off pursuant to the permission.

(2)Where the employee’s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he must be paid as if he had worked at that work for the whole of that time.

(3)Where the employee’s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he must be paid an amount calculated by reference to the average hourly earnings for that work.

(4)The average hourly earnings mentioned in subsection (3) are—

(a)those of the employee concerned, or

(b)if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances.

(5)A right to be paid an amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(6)Any contractual remuneration paid to an employee in respect of a period of time off under section 58 goes towards discharging any liability of the employer under subsection (1) in respect of that period; and, conversely, any payment under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I6S. 59 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

60 Complaints to [F144employment tribunals].E+W+S

(1)An employee may present a complaint to an [F144employment tribunal] that his employer—

(a)has failed to permit him to take time off as required by section 58, or

(b)has failed to pay him in accordance with section 59.

(2)An [F144employment 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 when the failure occurred, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F144employment tribunal] finds a complaint under subsection (1)(a) well-founded, the tribunal—

(a)shall make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the employee.

(4)The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the employer’s default in failing to permit time off to be taken by the employee, and

(b)any loss sustained by the employee which is attributable to the matters complained of.

(5)Where on a complaint under subsection (1)(b) an [F144employment tribunal] finds that an employer has failed to pay an employee in accordance with section 59, it shall order the employer to pay the amount which it finds to be due.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F144Words in s. 60(1)-(3)(5) and sidenote to s. 60 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Commencement Information

I7S. 60 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Employee representativesE+W+S

61 Right to time off for employee representatives.E+W+S

(1)An employee who is—

(a)an employee representative for the M23purposes of Chapter II of Part IV of the M24Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F145regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006]F145 , or

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

is entitled to be permitted by his employer to take reasonable time off during the employee’s working hours in order to perform his functions as such an employee representative or candidate [F146or in order to undergo training to perform such functions].

(2)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F145Words in s. 61(1)(a) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(b)

F146Words in s. 61(1) inserted (28.7.1999) by S.I. 1999/1925, reg. 15

Marginal Citations

62 Right to remuneration for time off under section 61.E+W+S

(1)An employee who is permitted to take time off under section 61 is entitled to be paid remuneration by his employer for the time taken off at the appropriate hourly rate.

(2)The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working 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 on which the time off is taken, or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4)The considerations referred to in subsection (3)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5)A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(6)Any contractual remuneration paid to an employee in respect of a period of time off under section 61 goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

63 Complaints to [F147employment tribunals].E+W+S

(1)An employee may present a complaint to an [F147employment tribunal] that his employer—

(a)has unreasonably refused to permit him to take time off as required by section 61, or

(b)has failed to pay the whole or any part of any amount to which the employee is entitled under section 62.

(2)An [F147employment 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 day on which the time off was taken or on which it is alleged the time off should have been permitted, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an [F147employment tribunal] finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4)If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which he would have been entitled under section 62 if the employer had not refused.

(5)If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under section 62, the tribunal shall also order the employer to pay to the employee the amount which it finds due to him.

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Amendments (Textual)

F147Words in s. 63(1)-(3) and sidenote to s. 63 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

63A Right to time off for young person for study or training.E+W+S

(1)An employee who—

(a)is aged 16 or 17,

(b)is not receiving full-time secondary or further education, and

(c)has not attained such standard of achievement as is prescribed by regulations made by the Secretary of State,

is entitled to be permitted by his employer to take time off during the employee’s working hours in order to undertake study or training leading to a relevant qualification.

(2)In this section—

(a)secondary education”—

(i)in relation to England and Wales, has the same meaning as in the M25Education Act 1996, and

(ii)in relation to Scotland, has the same meaning as in section 135(2)(b) of the M26Education (Scotland) Act 1980;

(b)further education”—

(i)in relation to England and Wales, [F149has the same meaning as in the Education Act 1996,] and

(ii)in relation to Scotland, has the same meaning as in section 1(3) of the M27Further and Higher Education (Scotland) Act 1992; and

(c)relevant qualification” means an external qualification the attainment of which—

(i)would contribute to the attainment of the standard prescribed for the purposes of subsection (1)(c), and

(ii)would be likely to enhance the employee’s employment prospects (whether with his employer or otherwise);

and for the purposes of paragraph (c) “external qualification” means an academic or vocational qualification awarded or authenticated by such person or body as may be specified in or under regulations made by the Secretary of State.

(3)An employee who—

(a)satisfies the requirements of paragraphs (a) to (c) of subsection (1), and

(b)is for the time being supplied by his employer to another person (“the principal”) to perform work in accordance with a contract made between the employer and the principal,

is entitled to be permitted by the principal to take time off during the employee’s working hours in order to undertake study or training leading to a relevant qualification.

(4)Where an employee—

(a)is aged 18,

(b)is undertaking study or training leading to a relevant qualification, and

(c)began such study or training before attaining that age,

subsections (1) and (3) shall apply to the employee, in relation to that study or training, as if “or 18” were inserted at the end of subsection (1)(a).

(5)The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and any conditions subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular, to—

(a)the requirements of the employee’s study or training, and

(b)the circumstances of the business of the employer or the principal and the effect of the employee’s time off on the running of that business.

(6)Regulations made for the purposes of subsections (1)(c) and (2) may make different provision for different cases, and in particular may make different provision in relation to England, Wales and Scotland respectively.

(7)References in this section to study or training are references to study or training on the premises of the employer or (as the case may be) principal or elsewhere.

(8)For the purposes of this section the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.]

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Amendments (Textual)

F148S. 63A inserted (1.9.1999) by 1998 c. 30, s. 32 (with s. 42(8)); S.I. 1999/987, art. 2

F149Words in s. 63A substituted (1.4.2001) by 2000 c. 21, s. 149, Sch. 9 para. 50, S.I. 2001/654, art. 2(2), Sch. Pt. II (with art. 3)

Modifications etc. (not altering text)

C40S. 63A(1)(c)(2): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7); S.I. 1998/3178, art. 3

C41S. 63A(2)(c) extended (1.9.2001) by S.I. 2001/2801, reg. 5

Marginal Citations

63B Right to remuneration for time off under section 63A.E+W+S

(1)An employee who is permitted to take time off under section 63A is entitled to be paid remuneration by his employer for the time taken off at the appropriate hourly rate.

(2)The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time off is taken.

(3)But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working hours calculated by dividing by twelve the total number of the employee’s working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken, or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in subsection (4) as are appropriate in the circumstances.

(4)The considerations referred to in subsection (3)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract, and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(5)A right to any amount under subsection (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(6)Any contractual remuneration paid to an employee in respect of a period of time off under section 63A goes towards discharging any liability of the employer to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.]

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Amendments (Textual)

F150Ss. 63B, 63C inserted (1.9.1999) by 1998 c. 30, s. 33 (with s. 42(8)); S.I. 1999/987, art. 2

F15163C Complaints to employment tribunals.E+W+S

(1)An employee may present a complaint to an employment tribunal that—

(a)his employer, or the principal referred to in subsection (3) of section 63A, has unreasonably refused to permit him to take time off as required by that section, or

(b)his employer has failed to pay the whole or any part of any amount to which the employee is entitled under section 63B.

(2)An employment 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 day on which the time off was taken or on which it is alleged the time off should have been permitted, or

(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 complaint to be presented before the end of that period of three months.

(3)Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect.

(4)If the complaint is that the employer or the principal has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer or the principal, as the case may be, to pay to the employee an amount equal to the remuneration to which he would have been entitled under section 63B if the employer or the principal had not refused.

(5)If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under section 63B, the tribunal shall also order the employer to pay to the employee the amount which it finds due to him.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F151Ss. 63B, 63C inserted (1.9.1999) by 1998 c. 30, s. 33 (with s. 42(8)); S.I. 1999/987, art. 2

[F152Part 6A E+W+SStudy and training

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F152Pt. 6A inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40(2), 269(4); S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

Prospective

63DStatutory right to make request in relation to study or trainingE+W+S

(1)A qualifying employee may make an application under this section to his or her employer.

(2)An application under this section (a “section 63D application”) is an application that meets—

(a)the conditions in subsections (3) to (5), and

(b)any further conditions specified by the Secretary of State in regulations.

(3)The application must be made for the purpose of enabling the employee to undertake study or training (or both) within subsection (4).

(4)Study or training is within this subsection if its purpose is to improve—

(a)the employee's effectiveness in the employer's business, and

(b)the performance of the employer's business.

(5)The application must state that it is an application under this section.

(6)An employee is a qualifying employee for the purposes of this section if the employee—

(a)satisfies any conditions about duration of employment specified by the Secretary of State in regulations, and

(b)is not a person within subsection (7).

(7)The following persons are within this subsection—

(a)a person of compulsory school age (or, in Scotland, school age);

(b)a person to whom Part 1 of the Education and Skills Act 2008 (duty to participate in education or training for 16 and 17 year olds) applies;

(c)a person who, by virtue of section 29 of that Act, is treated as a person to whom that Part applies for the purposes specified in that section (extension for person reaching 18);

(d)a person to whom section 63A of this Act (right to time off for young person for study or training) applies;

(e)an agency worker;

(f)a person of a description specified by the Secretary of State in regulations.

(8)Nothing in this Part prevents an employee and an employer from making any other arrangements in relation to study or training.

(9)In this section—

  • agency worker” means a worker supplied by a person (the “agent”) to do work for another person (the “principal”) under a contract or other arrangement between the agent and principal;

  • compulsory school age” has the meaning given in section 8 of the Education Act 1996;

  • school age” has the meaning given in section 31 of the Education (Scotland) Act 1980.

Prospective

63ESection 63D application: supplementaryE+W+S

(1)A section 63D application may—

(a)be made in relation to study or training of any description (subject to section 63D(3) and (4) and regulations under section 63D(2));

(b)relate to more than one description of study or training.

(2)The study or training may (in particular) be study or training that (if undertaken)—

(a)would be undertaken on the employer's premises or elsewhere (including at the employee's home);

(b)would be undertaken by the employee while performing the duties of the employee's employment or separately;

(c)would be provided or supervised by the employer or by someone else;

(d)would be undertaken without supervision;

(e)would be undertaken within or outside the United Kingdom.

(3)The study or training need not be intended to lead to the award of a qualification to the employee.

(4)A section 63D application must—

(a)give the following details of the proposed study or training—

(i)its subject matter;

(ii)where and when it would take place;

(iii)who would provide or supervise it;

(iv)what qualification (if any) it would lead to;

(b)explain how the employee thinks the proposed study or training would improve—

(i)the employee's effectiveness in the employer's business, and

(ii)the performance of the employer's business;

(c)contain information of any other description specified by the Secretary of State in regulations.

(5)The Secretary of State may make regulations about—

(a)the form of a section 63D application;

(b)when a section 63D application is to be taken to be received for the purposes of this Part.

Prospective

63FEmployer's duties in relation to applicationE+W+S

(1)Subsections (4) to (7) apply if—

(a)an employer receives a section 63D application (the “current application”) from an employee, and

(b)during the relevant 12 month period the employer has not received another section 63D application (an “earlier application”) from the employee.

(2)The “relevant 12 month period” is the 12 month period ending with the day on which the employer receives the current application.

(3)The Secretary of State may make regulations about circumstances in which, at an employee's request, an employer is to be required to ignore an earlier application for the purposes of subsection (1).

(4)The employer must deal with the application in accordance with regulations made by the Secretary of State.

(5)The employer may refuse a section 63D application only if the employer thinks that one or more of the permissible grounds for refusal applies in relation to the application.

(6)The employer may refuse part of a section 63D application only if the employer thinks that one or more of the permissible grounds for refusal applies in relation to that part.

(7)The permissible grounds for refusal are—

(a)that the proposed study or training to which the application, or the part in question, relates would not improve—

(i)the employee's effectiveness in the employer's business, or

(ii)the performance of the employer's business;

(b)the burden of additional costs;

(c)detrimental effect on ability to meet customer demand;

(d)inability to re-organise work among existing staff;

(e)inability to recruit additional staff;

(f)detrimental impact on quality;

(g)detrimental impact on performance;

(h)insufficiency of work during the periods the employee proposes to work;

(i)planned structural changes;

(j)any other grounds specified by the Secretary of State in regulations.

Prospective

63GRegulations about dealing with applicationsE+W+S

(1)Regulations under section 63F(4) may, in particular, include provision—

(a)for the employee to have a right to be accompanied by a person of a specified description when attending meetings held in relation to a section 63D application in accordance with any such regulations;

(b)for the postponement of such a meeting if the employee's companion under paragraph (a) is not available to attend it;

(c)in relation to companions under paragraph (a), corresponding to section 10(6) and (7) of the Employment Relations Act 1999 (right to paid time off to act as companion, etc.);

(d)in relation to the rights under paragraphs (a) to (c), for rights to complain to an employment tribunal and not to be subjected to a detriment, and about unfair dismissal;

(e)for section 63D applications to be treated as withdrawn in specified circumstances.

(2)In this section “specified” means specified in the regulations.

Prospective

63HEmployee's duties in relation to agreed study or trainingE+W+S

(1)This section applies if an employer has agreed to a section 63D application, or part of a section 63D application, made by an employee in relation to particular study or training (the “agreed study or training”).

(2)The employee must inform the employer if the employee—

(a)fails to start the agreed study or training;

(b)fails to complete the agreed study or training;

(c)undertakes, or proposes to undertake, study or training that differs from the agreed study or training in any respect (including those specified in section 63E(4)(a)).

(3)The Secretary of State may make regulations about the way in which the employee is to comply with the duty under subsection (2).

Prospective

63IComplaints to employment tribunalsE+W+S

(1)An employee who makes a section 63D application may present a complaint to an employment tribunal that—

(a)the employer has failed to comply with section 63F(4), (5) or (6), or

(b)the employer's decision to refuse the application, or part of it, is based on incorrect facts.

This is subject to the following provisions of this section.

(2)No complaint under this section may be made in respect of a section 63D application which has been disposed of by agreement or withdrawn.

(3)In the case of a section 63D application that has not been disposed of by agreement or withdrawn, a complaint under this section may only be made if the employer—

(a)notifies the employee of a decision to refuse the application (or part of it) on appeal, or

(b)commits a breach of regulations under section 63F(4), where the breach is of a description specified by the Secretary of State in regulations.

(4)No complaint under this section may be made in respect of failure to comply with provision included in regulations under section 63F(4) because of—

(a)section 63G(1)(a) or (b), if provision is included in regulations under section 63F(4) by virtue of section 63G(1)(d), or

(b)section 63G(1)(c).

(5)An employment tribunal may not consider a complaint under this section unless the complaint is presented—

(a)before the end of the period of three months beginning with the relevant date, or

(b)within any further period that the tribunal considers reasonable, if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(6)The relevant date is—

(a)in the case of a complaint permitted by subsection (3)(a), the date on which the employee is notified of the decision on the appeal;

(b)in the case of a complaint permitted by subsection (3)(b), the date on which the breach was committed.

Prospective

63JRemediesE+W+S

(1)If an employment tribunal finds a complaint under section 63I well-founded it must make a declaration to that effect and may—

(a)make an order for reconsideration of the section 63D application;

(b)make an award of compensation to be paid by the employer to the employee.

(2)The amount of any compensation must be the amount the tribunal considers just and equitable in all the circumstances, but must not exceed the permitted maximum.

(3)The permitted maximum is the number of weeks' pay specified by the Secretary of State in regulations.

(4)If an employment tribunal makes an order under subsection (1)(a), section 63F and regulations under that section apply as if the application had been received on the date of the order (instead of on the date it was actually received).

Prospective

63KSupplementaryE+W+S

Regulations under this Part may make different provision for different cases.]

Part VIIE+W+S Suspension from work

Suspension on medical groundsE+W+S

64 Right to remuneration on suspension on medical grounds.E+W+S

(1)An employee who is suspended from work by his employer on medical grounds is 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 Part an employee is suspended from work on medical grounds if he is suspended from work in consequence of—

(a)a requirement imposed by or under a provision of an enactment or of an instrument made under an enactment, or

(b)a recommendation in a provision of a code of practice issued or approved under section 16 of the M28Health and Safety at Work etc. Act 1974,

and the provision is for the time being specified in subsection (3).

(3)The provisions referred to in subsection (2) are—

  • Regulation 16 of the M29Control of Lead at Work Regulations 1980,

  • [F153Regulation 24 of the Ionising Radiations Regulations 1999 [S.I. 1999/xxxx]], and

  • Regulation 11 of the M30Control of Substances Hazardous to Health Regulations 1988.

(4)The Secretary of State may by order add provisions to or remove provisions from the list of provisions specified in subsection (3).

(5)For the purposes of this Part an employee shall be regarded as suspended from work on medical grounds only if and for so long as he—

(a)continues to be employed by his employer, but

(b)is not provided with work or does not perform the work he normally performed before the suspension.

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Amendments (Textual)

F153Words in s. 64(3) substituted (1.1.2000) by S.I. 1999/3232, reg. 41(1), Sch. 9 para. 2

Marginal Citations

65 Exclusions from right to remuneration.E+W+S

(1)An employee is not entitled to remuneration under section 64 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.

(2)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An employee is not entitled to remuneration under section 64 in respect of any period during which he is incapable of work by reason of disease or bodily or mental disablement.

(4)An employee is not entitled to remuneration under section 64 in respect of any period if—

(a)his employer has offered to provide him with suitable alternative work during the period (whether or not it is 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F154S. 65(2) omitted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(3) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

Suspension on maternity groundsE+W+S

66 Meaning of suspension on maternity grounds.E+W+S

(1)For the purposes of this Part an employee is suspended from work on maternity grounds if, in consequence of any relevant requirement or relevant recommendation, she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.

(2)In subsection (1)—

  • relevant requirement” means a requirement imposed by or under a specified provision of an enactment or of an instrument made under an enactment, and

  • relevant recommendation” means a recommendation in a specified provision of a code of practice issued or approved under section 16 of the M31Health and Safety at Work etc. Act 1974;

and in this subsection “specified provision” means a provision for the time being specified in an order made by the Secretary of State under this subsection.

(3)For the purposes of this Part an employee shall be regarded as suspended from work on maternity grounds only if and for so long as she—

(a)continues to be employed by her employer, but

(b)is not provided with work or (disregarding alternative work for the purposes of section 67) does not perform the work she normally performed before the suspension.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C42Ss. 66-68, 70-71, 92-93, Pt. X (ss. 94-134) modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch. (which S.I. was revoked (1.9.1999) by S.I. 1999/2256, art. 1(2))

C43Ss. 66-68 modified (E.W.) (1.9.1999) by S.I. 1999/2256, art. 3, Sch.

Marginal Citations

67 Right to offer of alternative work.E+W+S

(1)Where an employer has available suitable alternative work for an employee, the employee has a right to be offered to be provided with the alternative work before being suspended from work on maternity grounds.

(2)For alternative work to be suitable for an employee for the purposes of this section—

(a)the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances, and

(b)the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C46Ss. 66-68, 70-71, 92-93, Pt. X (ss. 94-134) modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch. (which S.I. was revoked (1.9.1999) by S.I. 1999/2256, art. 1(2))

C47Ss. 66-68 modified (E.W.) (1.9.1999) by S.I. 1999/2256, art. 3, Sch.

68 Right to remuneration.E+W+S

(1)An employee who is suspended from work on maternity grounds is entitled to be paid remuneration by her employer while she is so suspended.

(2)An employee is not entitled to remuneration under this section in respect of any period if—

(a)her employer has offered to provide her during the period with work which is suitable alternative work for her for the purposes of section 67, and

(b)the employee has unreasonably refused to perform that work.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C50Ss. 66-68, 70-71, 92-93, Pt. X (ss. 94-134) modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch. (which S.I. was revoked (1.9.1999) by S.I. 1999/2256, art. 1(2))

C51Ss. 66-68 modified (E.W.) (1.9.1999) by S.I. 1999/2256, art. 3, Sch.

[F155Ending the supply of an agency worker on maternity groundsE+W+S

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Amendments (Textual)

68AMeaning of ending the supply of an agency worker on maternity groundsE+W+S

  (1) For the purposes of this Part the supply of an agency worker to a hirer is ended on maternity grounds if, in consequence of action taken pursuant to a provision listed in subsection (2), the supply of the agency worker to the hirer is ended on the ground that she is pregnant, has recently given birth or is breastfeeding a child.   (2) The provisions are—

(a)regulations 8(3) or 9(2) of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997;

(b)regulation 16A(2) or 17A of the Management of Health and Safety at Work Regulations 1999; or

(c)regulation 20 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

68BRight to offer of alternative workE+W+S

  (1) Where the supply of an agency worker to a hirer is ended on maternity grounds and the temporary work agency has available suitable alternative work, the agency worker has a right to be offered to be proposed for such alternative work.   (2) For alternative work to be suitable for an agency worker for the purposes of this section—

(a)the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances, and

(b)the terms and conditions applicable to her whilst performing the work, if they differ from the corresponding terms and conditions which would have applied to her but for the fact that the supply of the agency worker to the hirer was ended on maternity grounds, must not be substantially less favourable to her than those corresponding terms and conditions.

  (3) Subsection (1) does not apply—

(a)where the agency worker has confirmed in writing that she no longer requires the work-finding services of the temporary work agency, or

(b)beyond the original intended duration, or likely duration, whichever is the longer, of the assignment which ended when the supply of the agency worker to the hirer was ended on maternity grounds.

68CRight to remunerationE+W+S

  (1) Where the supply of an agency worker to a hirer is ended on maternity grounds, that agency worker is entitled to be paid remuneration by the temporary work agency.   (2) An agency worker is not entitled to remuneration under this section in respect of any period if—

(a)the temporary work agency has—

(i)offered to propose the agency worker to a hirer that has alternative work available which is suitable alternative work for her for the purposes of section 68B, or

(ii)proposed the agency worker to a hirer that has such suitable alternative work available, and that hirer has agreed to the supply of that agency worker, and

(b)the agency worker has unreasonably refused that offer or to perform that work.

  (3) Nothing in this section imposes a duty on the temporary work agency to pay remuneration beyond the original intended duration, or likely duration, whichever is the longer, of the assignment which ended when the supply of the agency worker to the hirer was ended on maternity grounds.

68DAgency workers: supplementaryE+W+S

  (1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law sections 68A, 68B and 68C do not apply where the agency worker—

(a)has not completed the qualifying period, or

(b)is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.

  (2) Nothing in those sections imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer.   (3) Those sections do not apply where sections 66 to 68 apply.   (4) In this section and sections 68A to 68C the following have the same meaning as in the Agency Workers Regulations 2010—

  • “agency worker”

  • “assignment”;

  • “hirer”;

  • “qualifying period”;

  • “temporary work agency”.]

GeneralE+W+S

69 Calculation of remuneration.E+W+S

(1)The amount of remuneration payable by an employer to an employee under section 64 or 68 is a week’s pay in respect of each week of the period of suspension; and if in any week remuneration is payable in respect of only part of that week the amount of a week’s pay shall be reduced proportionately.

(2)A right to remuneration under section 64 or 68 does not affect any right of an employee in relation to remuneration under the employee’s contract of employment (“contractual remuneration”).

(3)Any contractual remuneration paid by an employer to an employee in respect of any period goes towards discharging the employer’s liability under section 64 or 68 in respect of that period; and, conversely, any payment of remuneration in discharge of an employer’s liability under section 64 or 68 in respect of any period goes towards discharging any obligation of the employer to pay contractual remuneration in respect of that period.

[F15669ACalculation of remuneration (agency workers)E+W+S

  (1) The amount of remuneration payable by a temporary work agency to an agency worker under section 68C is a week's pay in respect of each week for which remuneration is payable in accordance with section 68C; and if in any week remuneration is payable in respect of only part of that week the amount of a week's pay shall be reduced proportionately.

  (2) A right to remuneration under section 68C does not affect any right of the agency worker in relation to remuneration under the contract with the temporary work agency (“contractual remuneration”).

  (3) Any contractual remuneration paid by the temporary work agency to an agency worker in respect of any period goes towards discharging the temporary work agency's liability under section 68C in respect of that period; and, conversely, any payment of remuneration in discharge of a temporary work agency's liability under section 68C in respect of any period goes towards discharging any obligation of the temporary work agency to pay contractual remuneration in respect of that period.

  (4) For the purposes of subsection (1), a week's pay is the weekly amount that would have been payable to the agency worker for performing the work, according to the terms of the contract with the temporary work agency, but for the fact that the supply of the agency worker to the hirer was ended on maternity grounds.

  (5) Expressions used in this section and sections 68A to 68C have the same meaning as in those sections (see section 68D).]

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Amendments (Textual)

70 Complaints to [F157employment tribunals].E+W+S

(1)An employee may present a complaint to an [F157employment tribunal] that his or her employer has failed to pay the whole or any part of remuneration to which the employee is entitled under section 64 or 68.

(2)An [F157employment tribunal] shall not consider a complaint under subsection (1) relating to remuneration in respect of any day unless it is presented—

(a)before the end of the period of three months beginning with that day, or

(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 complaint to be presented within that period of three months.

(3)Where an [F157employment tribunal] finds a complaint under subsection (1) well-founded, the tribunal shall order the employer to pay the employee the amount of remuneration which it finds is due to him or her.

(4)An employee may present a complaint to an [F157employment tribunal] that in contravention of section 67 her employer has failed to offer to provide her with work.

(5)An [F157employment tribunal] shall not consider a complaint under subsection (4) unless it is presented—

(a)before the end of the period of three months beginning with the first day of the suspension, or

(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 complaint to be presented within that period of three months.

(6)Where an [F157employment tribunal] finds a complaint under subsection (4) well-founded, the tribunal may make an award of compensation to be paid by the employer to the employee.

(7)The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement of the employee’s right under section 67 by the failure on the part of the employer to which the complaint relates, and

(b)any loss sustained by the employee which is attributable to that failure.

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Amendments (Textual)

F157Words in s. 70(1)-(6) and sidenote to s. 70 substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(b) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C54Ss. 66-68, 70-71, 92-93, Pt. X (ss. 94-134) modified (E.W.) (2.3.1998) by S.I. 1998/218, art. 3, Sch. (which S.I. was revoked (1.9.1999) by S.I. 1999/2256, art. 1(2))

C55S. 70 modified (E.W.) (1.9.1999) by S.I. 1999/2256, art. 3, Sch.

[F15870AComplaints to employment tribunals: agency workersE+W+S

  (1) An agency worker may present a complaint to an employment tribunal that the temporary work agency has failed to pay the whole or any part of remuneration to which the agency worker is entitled under section 68C.

  (2) An employment tribunal shall not consider a complaint under subsection (1) relating to remuneration in respect of any day unless it is presented—

(a)before the end of the period of three months beginning with the day on which the supply of the agency worker to a hirer was ended on maternity grounds, or

(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 complaint to be presented within that period of three months.

  (3) Where an employment tribunal finds a complaint under subsection (1) well-founded, the tribunal shall order the temporary work agency to pay the agency worker the amount of remuneration which it finds is due to her.

  (4) An agency worker may present a complaint to an employment tribunal that in contravention of section 68B the temporary work agency has failed to offer to propose the agency worker to a hirer that has suitable alternative work available.

  (5) An employment tribunal shall not consider a complaint under subsection (4) unless it is presented—

(a)before the end of the period of three months beginning with the day on which the supply of the agency worker to a hirer was ended on maternity grounds, or

(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 complaint to be presented within that period of three months.

  (6) Where an employment tribunal finds a complaint under subsection (4) well-founded, the tribunal shall order the temporary work agency to pay the agency worker the amount of compensation which it finds is due to her.

  (7) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the infringement of the agency worker's right under section 68B by the failure on the part of the temporary work agency to which the complaint relates, and

(b)any loss sustained by the agency worker which is attributable to that failure.

  (8) Expressions used in this section and sections 68A to 68C have the same meaning as in those sections (see section 68D).]

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Amendments (Textual)

[F159Part VIIIE+W+S

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Amendments (Textual)

F159Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. II (with transitional provisions in Sch. 3 para. 10)

F160Chapter IE+W+S MATERNITY LEAVE

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Amendments (Textual)

F160Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

F16171

(1)An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.

(2)An ordinary maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

[F162(3)Regulations under subsection (2)—

(a)shall secure that, where an employee has a right to leave under this section, she is entitled to an ordinary maternity leave period of at least 26 weeks;

(b)may allow an employee to choose, subject to prescribed restrictions, the date on which an ordinary maternity leave period starts;

(c)may specify circumstances in which an employee may work for her employer during an ordinary maternity leave period without bringing the period to an end.]

F162(4)Subject to section 74, an employee who exercises her right under subsection (1)—

(a)is entitled [F163, for such purposes and to such extent as may be prescribed,]F163 to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

(b)is bound [F164, for such purposes and to such extent as may be prescribed]F164 by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

[F165(c)is entitled to return from leave to a job of a prescribed kind.]

F165(5)In subsection (4)(a) “terms and conditions of employment”—

(a)includes matters connected with an employee’s employment whether or not they arise under her contract of employment, but

(b)does not include terms and conditions about remuneration.

(6)The Secretary of State may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this section.

[F166(7)The Secretary of State may make regulations making provision, in relation to the right to return under subsection (4)(c) above, about—

(a)seniority, pension rights and similar rights;

(b)terms and conditions of employment on return.F166]

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Amendments (Textual)

F161Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

F162S. 71(3) substituted (27.6.2006 for certain purposes, otherwise 1.10.2006) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 31; S.I. 2006/1682, art. 2(c), 3(c)(d)

Modifications etc. (not altering text)

C58S. 71 restricted (15.12.1999) by S.I. 1999/3312, reg. 9

F16772 Compulsory maternity leave.E+W+S

(1)An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave period.

(2)A compulsory maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

(3)Regulations under subsection (2) shall secure—

(a)that no compulsory leave period is less than two weeks, and

(b)that every compulsory maternity leave period falls within an ordinary maternity leave period.

(4)Subject to subsection (5), any provision of or made under the M32Health and Safety at Work etc. Act 1974 shall apply in relation to the prohibition under subsection (1) as if it were imposed by regulations under section 15 of that Act.

(5)Section 33(1)(c) of the 1974 Act shall not apply in relation to the prohibition under subsection (1); and an employer who contravenes that subsection shall be—

(a)guilty of an offence, and

(b)liable on summary conviction to a fine not exceeding level 2 on the standard scale.

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Amendments (Textual)

F167Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

Marginal Citations

F16873 Additional maternity leave.E+W+S

(1)An employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period.

(2)An additional maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

[F169(3)Regulations under subsection (2)—

(a)may allow an employee to choose, subject to prescribed restrictions, the date on which an additional maternity leave period ends;

(b)may specify circumstances in which an employee may work for her employer during an additional maternity leave period without bringing the period to an end.]

F169(4)Subject to section 74, an employee who exercises her right under subsection (1)—

(a)is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

(b)is bound, for such purposes and to such extent as may be prescribed, by obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

(c)is entitled to return from leave to a job of a prescribed kind.

(5)In subsection (4)(a) “terms and conditions of employment”—

(a)includes matters connected with an employee’s employment whether or not they arise under her contract of employment, but

(b)does not include terms and conditions about remuneration.

[F170(5A)In subsection (4)(c), the reference to return from leave includes, where appropriate, a reference to a continuous period of absence attributable partly to additional maternity leave and partly to ordinary maternity leave.]

F170(6)The Secretary of State may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this section.

(7)The Secretary of State may make regulations making provision, in relation to the right to return under subsection (4)(c), about—

(a)seniority, pension rights and similar rights;

(b)terms and conditions of employment on return.

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Amendments (Textual)

F168Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

F169S. 73(3) substituted (27.6.2006 for certain purposes, otherwise 1.10.2006) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 32; S.I. 2006/1682, art. 2(c), 3(c)(d)

F17174 Redundancy and dismissal.E+W+S

(1)Regulations under section 71 or 73 may make provision about redundancy during an ordinary or additional maternity leave period.

(2)Regulations under section 71 or 73 may make provision about dismissal (other than by reason of redundancy) during an ordinary or additional maternity leave period.

(3)Regulations made by virtue of subsection (1) or (2) may include—

(a)provision requiring an employer to offer alternative employment;

(b)provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part X).

(4)Regulations under section [F17271 or]F172 73 may make provision—

(a)for section [F17371(4)(c) or]F173 73(4)(c) not to apply in specified cases, and

(b)about dismissal at the conclusion of an [F174ordinary or]F174 additional maternity leave period.

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Amendments (Textual)

F171Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

F17575 Sections 71 to 73: supplemental.E+W+S

(1)Regulations under section 71, 72 or 73 may—

(a)make provision about notices to be given, evidence to be produced and other procedures to be followed by employees and employers;

(b)make provision for the consequences of failure to give notices, to produce evidence or to comply with other procedural requirements;

(c)make provision for the consequences of failure to act in accordance with a notice given by virtue of paragraph (a);

(d)make special provision for cases where an employee has a right which corresponds to a right under this Chapter and which arises under her contract of employment or otherwise;

(e)make provision modifying the effect of Chapter II of Part XIV (calculation of a week’s pay) in relation to an employee who is or has been absent from work on ordinary or additional maternity leave;

(f)make provision applying, modifying or excluding an enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to a person entitled to ordinary, compulsory or additional maternity leave;

(g)make different provision for different cases or circumstances.

(2)In sections 71 to 73 “prescribed” means prescribed by regulations made by the Secretary of State.

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Amendments (Textual)

F175Pt. VIII (ss. 71-80) substituted for Pt. VIII (ss. 71-85) (15.12.1999) by 1999 c. 26, s. 7, Sch. 4 Pt. I; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 para. 10)

[F176Chapter 1A E+W+SAdoption leave

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Amendments (Textual)

75A Ordinary adoption leaveE+W+S

(1)An employee who satisfies prescribed conditions may be absent from work at any time during an ordinary adoption leave period.

(2)An ordinary adoption leave period is a period calculated in accordance with regulations made by the Secretary of State.

[F177(2A)Regulations under subsection (2) may specify circumstances in which an employee may work for his employer during an ordinary adoption leave period without bringing the period to an end.]

F177(3)Subject to section 75C, an employee who exercises his right under subsection (1)—

(a)is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent,